text:
a)	There has been an abuse of process.
b)	The individual unit owners cannot bring an action in relation to common property.
The claims are too complex for Small Claims Court.
 The first issue that the claimants are abusing judicial process is without merit. Firstly, there is no prohibition against commencing an action in the Supreme Court, abandoning the claim there before the matter has been heard on its merits, then commencing the matter in Small Claim Court, as long as the claim falls within the jurisdiction of this Court.
 Secondly, the claimant in the Supreme Court action was the Strata Corporation LMS 2508 and here the actions are commenced by seven individual owners. The issue is whether individual strata owners have standing to sue on their own behalf a third party for damage to the common property of the strata corporation.
 On February 7, 2001 the owners, Strata Plan LMS 2508 filed a claim in the Supreme Court of British Columbia against the defendants for damages caused by deficiencies in work, materials, design and inspection in the construction of their condominium. The subject property is a 21-unit condominium apartment block identified here as "The Tides".
 The Writ of Summons was not served on the defendants and the limitation period for service expired. Instructions were given to the claimants' solicitor that the claimants did not wish to proceed. Therefore, there is no claim before the Supreme Court. The action, although initiated, was never before that Court to be heard on its merits. The claim in Supreme Court was abandoned. The defendants were never called upon to answer the claim. They were not put to any prejudice, cost or inconvenience. Thus, there was no abuse of the Court process nor were any of the defendants' rights or interests.
 In considering this application, albeit, the claim as indicated is the same as that filed in the Supreme Court. It is not filed specifically by the same party. Individuals, it is trite to say, are at liberty to commence an action in this Court on their own behalf, but the question becomes one of whether that individual has a right to be heard as an individual. That issue will be dealt with after addressing the third issue raised by the applicant.
	That, "the claims are too complex for Small Claims Court". The submission on this point is that pursuant to the Small Claims Act, R.S.B.C. 1996 c 430 Section 2(1), this Court is to hear matters in a just, speedy, inexpensive and simple manner. Somehow, counsel equates this with this Court being qualified to only hearing simple matters. That is not the case. There are innumerable cases that are heard in this Court and this division of the Court that are lengthy, have a multitude of witnesses, sundry expert witnesses, copious exhibits, technical and otherwise, as well as hearing questions of law, evidence and procedure, including constitutional questions. My recollection of the history of this Court is that it has yet to be overwhelmed by a case that is more than simple case. The mandate of this Court is to provide for a system of justice that is just, speedy within the circumstances of the case, with Court procedure designed to facilitate lay litigants to resolve disputes without professional help administered and adjudicated in a manner that is understood by litigants without the aid of counsel. That is the goal, that is the object. Sometimes, that of itself is not a simple exercise but it does not exceed the mandate of this Court. The challenge that this claim is too complex to be heard by this Court, to put it very kindly, is without merit.
 Back to the issue of the claimants standing before this Court. There is no issue that the property in question is the common property of the strata corporation.
 No individual unit holder has an exclusive right to represent the interest of the other unit owners who have a common interest in common property. Sections 3 and 4 of the Strata Property Act provides that is the responsibility of the strata corporation.
3. Except as otherwise provided in this Act, the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners.
4. The powers and duties of the strata corporation must be exercised and performed by a council, unless this Act, the regulations or the bylaws provide otherwise.
"The strata corporation is responsible for managing and maintaining the common property."
"And, the powers and duties of the strata corporation must be exercised and performed by a council except as may otherwise be provided for."
(2)	An owner may sue the strata corporation.
Section 163(1) and (2) does not refer to the right of an individual to sue a third party. Subsection (1) says that the strata corporation may be sued. Subsection (2) says that an owner may also sue the strata corporation. That section says, yes, the individual owner may sue, but may sue the corporation, it does not speak of any other party.
 This does not expand the right of an individual to sue, it does state that it may sue on behalf of an individual about matters affecting only their strata lots, subject to the consent of others. It does not permit an individual owner to sue a third party about matters concerning common property. There is no implication in that section that suggests otherwise.
This section refers to a dispute between a strata corporation and an owner or one owner and another owner. It does not confer the independence of an owner to sue anyone else about the matters of common property. And, it is conceded that the property in issue here is in fact common property.
	The Act does not contemplate the responsibility of maintaining and managing common property being within the right of an individual owner to independently undertake. See Section 3, above.
(b) the owners of the strata lots in the strata plan are members of the strata corporation under the name "The Owners, Strata Plan [the registration number of the strata plan]".
(2) Subject to any limitation under this Act or the regulations, a strata corporation has the power and capacity of a natural person of full capacity.
Generally in all matters not particularly mentioned in this Act in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity prevail.
Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits.
	The Strata Act is in fact legislation that has the force of law in British Columbia.
163 (1) The strata corporation may be sued as representative of the owners with respect to any matter relating to the common property, common assets, bylaws or rules, or involving an act or omission of the strata corporation.
(2) An owner may sue the strata corporation.
(b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting.
(c) regulate the conduct of the strata corporation's future affairs.
 The respondent owners, urge that the strata corporation has made a significantly unfair decision as it relates to their interests. Therefore, it is for the Supreme Court, by law, to provide any remedy not the Small Claims Court.
 The individuals as claimants in the above listed actions have no standing before this Court unless otherwise ordered by the Supreme Court. This Application is therefore granted.
Ang v. Spectra Management Services et al.
347518 B.C. LTD., AND LE SOLEIL HOTEL & SUITES LTD.
 The Sheraton Suites Le Soleil Hotel opened in downtown Vancouver in 1999. It is a strata lot development consisting of 127 units that were offered for sale and lease back to the developer, American Corporate Suites (Canada) Inc. (%u201CACS%u201D), for 20 years to facilitate the operation of a boutique, condominium corporate suites hotel. In less than three years, ACS was rendered bankrupt and the trustee disclaimed all interest in the unit leases such that they terminated. The hotel continues to operate, but the commercial crisis that resulted has given rise to the commencement of a variety of litigious proceedings. There is dissension among the owners of the units as to how best to protect their interests. A large number of them, acting as a group, and at least two third parties have been attempting to take over the operation of the hotel.
 This proceeding is brought by one of the owners to challenge the validity of two leases of common property, the control of which is pivotal to the operation of the hotel. The leases are for terms of 20 and 21 years and they survive the termination of the unit leases. They are now held by a third party. It is a challenge that is based on what is said to have been a breach of a fiduciary duty ACS owed to the individuals to which it sold the units. The contention is that ACS preferred its interests over that of the owners by wrongly arranging to hold, directly or through a related company, leases of first, the parkade (the %u201CParking Lease%u201D) and second, all other common property including the lobby, hallways, elevators, loading areas, and common washrooms (the %u201CLobby Lease%u201D) that are at odds with provisions of the Disclosure Statement ACS was, by statute, required to publish to prospective owners and upon which the owners were entitled to rely in assessing the investment they made when they purchased their units.
 I begin by outlining the background to the proceeding and the issues to which it gives rise.
 Sim Wee Betty Ang (referred to as %u201CMs. Ang%u201D) applies pursuant to s. 164(1) of the Strata Property Act, S.B.C. 1998, c. 43 (the %u201CAct%u201D), to have the two leases declared void. ACS executed a General Security Agreement in 1997 and the leases, together with an assignment of the GSA, were sold by the secured creditor to Sunbelt Hotel Services Management Ltd., or to its related company, 347518 B.C. Ltd (together %u201CSunbelt%u201D). The sale put Sunbelt in a position to operate the hotel subject to negotiating new unit lease agreements with the owners. Thus far, that has proven difficult. Sunbelt currently operates the hotel through Le Soleil Hotel & Suites Ltd. pursuant to an interim court order, made by consent, under which the owners are entitled to receive a specified amount of rent for the use of their units.
 The two leases are encumbrances of the common property that ACS caused to be executed after the agreements for the purchase and sale of the units were made but before any were completed. They provide for only nominal rent ($10.00). A strata corporation, being the Owners, Strata Plan LMS3837 (the %u201CStrata Corporation%u201D), was created by operation of statute on March 12, 1999, when the strata plan was filed in the Land Title Office. The first unit sale was completed April 9th. The Parking Lease was executed on March 10th and registered against the title to the common property just before the strata plan was filed. ACS leased the parkade to a related company, 521006 B.C. Ltd., which then granted a licence for its use to ACS. The Lobby Lease was executed on March 30th after the plan was filed but during the period when ACS was the only unit owner. The lease was never registered. The strata corporation leased the lobby, hallways, and elevators to ACS. It may then have assigned the lease to another related company, Spectre Management Services Ltd., but that remains unclear. ACS caused the Strata Corporation to pass a unanimous special resolution authorizing the two leases on March 30th.
 Ms. Ang is associated with the group of the owners that seeks to take over the operation of the hotel. It is referred to as the Le Soleil Owners Group (%u201CLSOG%u201D). When the two leases were offered for sale following the bankruptcy of ACS, the sale was undertaken by a receiver%u2019s closed-bid auction. LSOG (acting through an agent, Executive Inn Inc.) bid against Sunbelt and others in an effort to acquire the leases. Its bid was $30,000 too low but the owners%u2019 involvement probably had some effect on what Sunbelt considered it had to bid for the leases. It bid, and then paid, over one and a half million dollars. Having failed in that attempt to obtain control of the common property, LSOG then tried to purchase the leases from Sunbelt, but they were unable to come to terms. Now, LSOG has apparently chosen Ms. Ang to challenge the validity of the leases in a further attempt to gain control of the common property and the operation of the hotel. Thus, where Ms. Ang was part of a group that was prepared to pay a substantial sum for the leases, and further, likely influenced the bidding for them, she now takes the position that they are void and of no value. She says that Sunbelt acquired nothing.
 Ms. Ang claims that she has been subjected to significant unfair action by the Strata Corporation in respect of the leasing of the common property. She maintains that ACS bore a fiduciary duty, both before and after the filing of a strata plan, to act, in all respects, in the best interests of the owners, citing decisions where it is said such a duty on the part of condominium developers has been recognized: Hill v. Strata Plan N.W. 2477 (1991), 81 D.L.R. (4th) 720 (B.C.C.A.), Strata Plan. 1261 v. 360204 B.C. Ltd.,  B.C.J. No. 2761 (S.C.), York Condominium Corp. No. 167 et al v. Newrey Holdings Ltd. et al (1981), 122 D.L.R. (3rd) 280 (Ont. C.A.), and Terrace Corp. (Construction) v. Owners, Condominium Plan 752-1207 (1983), 146 D.L.R. (3d) 324 (Alta. C.A.). Ms. Ang says that the duty was breached in a number of ways in respect of both leases because they were not made for the benefit of the owners but for ACS. She accepts that it would not be open to her to complain if proper disclosure of the arrangement ACS put in place had been given in the Disclosure Statement, but she says that it was not and that the statement was, in fact, misleading. She claims that, on the authority cited, the remedy to which she is entitled under s. 164(1) is an order declaring the two leases to be void.
 It is, however, significant that Ms. Ang seeks the relief she does not because of any benefit ACS actually received of which she was deprived, but because the owners, of which she is one, do not have control of the common property and hence of the operation of the hotel - something they did not pay for and, when they purchased their units, did not expect to have.
 The hotel is not the customary kind of condominium complex that was to be operated for the benefit of the owners alone. It was a business that ACS was to operate for its own benefit as well. The owners had, at the outset, a choice of whether to lease their units or to occupy them and keep them separate from the hotel operation. Most leased and did so on the basis of receiving a fixed rent from ACS, renewable on five year terms. It was then ACS that bore the business risk. The justification offered for the lease of the common property is that ACS needed a long term lease both to obtain a Sheraton franchise and to secure the substantial investment it had made in enhancing the common property. It is against this background that ACS%u2019s arranging the two leases must be understood. What underlies Ms. Ang%u2019s application is the fact that ACS did not structure them so that they would not survive its own bankruptcy.
 The application is opposed by Sunbelt and by its related companies. The Strata Corporation appears, but takes no position on the application. The other parties named in the petition are companies related to ACS. They also take no position.
 Sunbelt opposes the application on various grounds that raise a range of issues. Broadly, they include: whether the Parking Lease was an action of the Strata Council which permits s. 164(1) of the Act to be invoked in respect of that lease at all; what the scope of the developer%u2019s fiduciary duty was; whether, having regard for the Disclosure Statement, any breach of the duty ACS owed the owners caused any significant unfairness to Ms. Ang; and what, if any, remedy is available to her in the particular circumstances that now prevail, specifically whether the leases are void ab initio or merely voidable and whether she is now estopped from taking the position that the leases are void in any event. However, the first issue, which if decided against Ms. Ang is determinative, is whether she has standing under s. 164(1) to make application to have either of the two leases declared void.
 Sunbelt says Ms. Ang does not have standing because the rule in Foss v. Harbottle (1843), 2 Hare 461, 67 E.R. 189 precludes a member of a strata corporation from making the kind of application that Ms. Ang makes in the same way it would if she were a shareholder or member of an incorporated company. Reliance is placed on Watson v. Imperial Financial Services Ltd. (1994), 88 B.C.L.R. (2d) 88 (C.A.) and Lee v. Block Estate (1984), 50 B.C.L.R. 289 (S.C.), where it was held that the rule is not limited in its application to companies, as well as on Beck v. Andrews Realty Ltd. (c.o.b. Re/Max Real Estate Services),  B.C.J. No. 2796, a decision of the Provincial Court holding the rule applicable to strata corporations.
 Ms. Ang maintains that the section of the Act under which she applies is worded to give each owner an independent cause of action which extends to proceedings to preserve common property. She says that the Act does not preclude an individual owner from taking such proceedings and that both strata corporation and owner are proper parties to seek remedies in that regard. Support for her position is said to be found in an article by Gerald Ghikas, %u201CThe Strata Corporation as Plaintiff%u201D, (1986) 44 The Advocate 783.
 Section 2 of the Act constitutes the owners as members of the Strata Corporation which has the power and capacity of a natural person of full capacity. That means it has the power to bring legal proceedings.
 LSOG is apparently unable to muster sufficient support among the owners to obtain the requisite three quarters vote that would authorize the Strata Corporation to make this application. Thus, by having Ms. Ang apply, it seeks to circumvent the governance provisions of the Act and achieve what it cannot achieve through a special meeting of the owners. The question is whether s. 164(1) authorizes an owner to make his or her own application to preserve common property notwithstanding the statutory scheme which vests in the Strata Corporation the responsibility to manage and maintain that property and to sue to preserve it on behalf of all of the owners when authorized by the requisite vote.
 The rule in Foss v. Harbottle is among the most firmly entrenched rules of company law. It states that where there is damage to a company, being a distinct legal entity, only the company, and not the shareholders, is the proper party to seek relief. In Watson, supra, at paras. 25-29, the Court of Appeal held that Lee v. Block Estates, supra, correctly decided that the rule applied to limited partnerships. I can see no sound reason why it should not apply to a strata corporation. I am supported in my view by the reasoning employed in what, with respect, is a full consideration of the point well supported by authority in Beck v. Andrews Realty, supra, at paras. 10-27. Little need be added to what is said there.
 The article upon which Ms. Ang relies does not argue against the applicability of the rule in Foss v. Harbottle to strata corporations. On p. 786, the learned author does say that the point has not yet been decided and he explains that, unlike the shareholders of a company, the members of a strata corporation are personally liable for its debts in proportion to their unit entitlement. He then, however, expresses the view that the efficient administration of justice will probably be best served by the courts insisting on the strata corporation initiating proceedings subject to the direction of the owners.
 The wrong for which Ms. Ang seeks relief is not one that was suffered by her in any personal capacity and she is not a party to either of the leases she seeks to have declared void. If any wrong was committed, it was to the Strata Corporation itself. Ms. Ang is attempting to pursue what is, in effect, a derivative proceeding, something that is not open to her on this application. The rule in Foss v. Harbottle precludes her application as, in my view, it should. Its working is consistent with the statutory scheme that vests the authority to initiate proceedings to preserve common property in the Strata Corporation. No one owner ought to be able to apply to have a lease of such property declared void.
 In my view, s. 164(1) does no more than authorize proceedings by an owner to redress the actions of a strata corporation that are significantly unfair to that owner. As Sunbelt suggests, it is not unlike statutory oppression remedies that are available to the shareholders or members of a company.
 I conclude, then, that Ms. Ang is without standing to make the application she does. It is neither necessary nor desirable to consider the other issues that are raised now.
 The application is dismissed with costs.

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to develop understanding of terminology.
1.1.2. to regulate the processes in the transport chain which are not regulated by legislation .
1.2. These conditions shall apply, unless agreed otherwise.
and the conditions are in conformity with the General Conditions of the Estonian Freight Forwarders Association effective at the time of carriage.
1.4. Regulations and other legislations of general application listed in point 1.3 shall apply for areas not covered by these General conditions for carriage of goods by road.
Consignment means the goods which are sent by the same consignment note from the same place of departure to the same destination by the same consignor to the same consignee using the same vehicle.
Packaging unit means an inseparable amount of goods in transport packaging.
Transport packaging is used for simplifying the handling of goods and ensuring of safety during the carriage of goods. Transport packaging shall enable fixed securing of goods in the freight space.
Small package means a consignment the gross weight of which does not exceed 35 kg and which includes one packaging unit. The length of the packaging unit of a small package does not exceed 2 m, and the length + circumference does not exceed 3 m.
Parcel consignment means a consignment the gross weight of which does not exceed 99 kg and it consists of three small packages as a maximum.
Small consignment means a consignment the estimated gross weight of which is below 2,500 kg and the carriage of small consignments generally involves transhipment.
Partial load means a consignment the estimated gross weight of which is 2,500 kg or more and in addition to which there is space for and it is possible to load more consignments into a vehicle, and transport generally does not involve transhipment.
Complete load means a consignment which fills the total freight space, has the maximum authorized weight for the specific vehicle, otherwise the consignor shall pay for the use of total freight space. Transport generally does not involve transhipment.
Consolidated (combined) consignment means handling of different consignments as one single consignment at some stages of the carriage of goods.
Loading place means the address indicated in the consignment note where the loading or unloading of consignment would take place.
Loading includes the loading or unloading of consignment at the sides or back of the vehicle. Loading means the loading of consignment into vehicle at loading place, not further than 6 metres of the vehicle, appropriate stowage and securing of load. Unloading means the unloading of consignment from vehicle and placing it next to the vehicle or loading bay at the distance of no further than 6 metres.
Loading time is calculated from the moment the vehicle arrives at the loading place and the carrier hands over a copy of the consignment note to the consignor or informs of the arrival of the vehicle for loading.
Loading time is over when the goods are loaded or unloaded and the signed copy of the consignment note has been returned to the driver, other necessary carriage documents have been handed over, if necessary, and the vehicle is ready for departure (i.e. the box body is closed, the canopy secured and, if necessary, sealed).
Vehicle is a truck or trailer used for carriage of goods.
Freight space is the part of vehicle which is used for carriage of goods. Freight space is a part of vehicle or a separate space (e.g. trailer, container) for stowage and securing of goods for the time of carriage.
Consignor is a person who orders transport services and is responsible for the payment of carriage charges.
3.1. Contracts are made by using generally the form (offer/acceptance) provided in the articles 9 and 10 of the general part of the Law of Obligations Act.
3.2. A contract is deemed concluded, with accompanying liability to the parties, when the acceptance reaches the carrier and upon acceptance of it by the carrier.
3.3. The transport order is deemed accepted when it is in conformity with the offer or with the conditions of an earlier agreed long-term contract, otherwise the offer shall be deemed as a new offer (counteroffer).
3.4. In the case of new offer (counteroffer) the contract is deemed concluded after receipt of the acceptance of transport order confirmation or at taking over of freight for carriage.
7) special conditions for vehicles (temperature requirements, special requirements regarding dangerous consignments, tailgate lift, side loader, etc.).
The consignor is responsible for the correctness of submitted data and shall annex to the consignment note necessary export documents and/or associated documents and/or instructions regarding the consignment.
3.6. If the consignor wants the carrier to be the intermediary for arranging the goods in transit insurance for the consignment, the requirement shall explicitly be expressed in the written order.
3.7. Conclusion of the contract for carriage is confirmed in the consignment note signed by the consignor and carrier or it can be done in the manner of equivalent legal force by signing the contract using information technology instruments.
3.8. The contract for carriage will assume free traffic conditions without any hindrance and the possibility to perform carriage on drivable roads with necessary load carrying capacity.
3.10. The instructions and related guidelines effective for the carriage of foodstuffs and dangerous (ADR) goods are applied with regard to the carriage of foodstuffs and dangerous (ADR) goods.
3.11. In the case of carriage of goods outside normally scheduled working hours (8.00- 17.00 on working days) and other special carriage of goods (including removal, containers, etc) carriage conditions are agreed on a case by case basis.
3.12. Time-limits for carriage are binding if the carrier has explicitly confirmed it in a format which can be reproduced in writing.
– the hold shall be in the field of visibility of the carrier or the security of the vehicle shall be guaranteed, etc .
4.2. The consignor shall compensate all costs occurring as a result of accessing the loading place (paid entry, paid parking, costs for releasing goods in customs warehouses, ports, railway stations and airports, other charges and official expenses).
Considering the type and agreed manner of carriage, the consignor shall package the goods in a way that the consignment is protected against loss and damage and will not cause loss to the carrier.
4.3.1. The packaging of consignment shall enable the consignment to be transported with other consignments, i.e. it shall not damage other consignments or the vehicle and shall allow loading of other consignments on top of it to the extent of the total height of freight space, unless it is complete load or it has been agreed otherwise.
4.3.2. Each packaging unit of the consignment shall be packaged by the consignor into a transportable package in a manner which will allow securing of consignment in the freight space and will ensure preservation of goods during loading and carriage. Similarly, the packaging shall ensure the stability of load until it reaches its destination and will exclude shift of the centre of gravity of load. Small consignments, which can be stowed on standard pallets due to their characteristics, shall be stowed on pallets.
dimensions of packaging unit, if necessary.
Marking is not required for carriage of a complete load from one consignor to one unloading place of one consignee.
4.4. The consignor assumes the loading and securing obligation of partial load and complete load if transfer of consignment takes place in the freight space. Generally the carrier is obligated to be present at loading. The carrier may assist the consignor in the loading process, in such a case he will act in the name and responsibility of the consignor.
4.5. When a canopy trailer is used for carriage, the carrier shall open the cables, sideboards and tailboard of the freight space, and if necessary, lift the canopy at the sides and/or at the back. If the consignment cannot be loaded without taking down the canopy, the consignor shall remove and then put back the top, frame and canopy of canopy trailer following the instructions of the carrier.
If loading lasts longer, it will be recorded in the consignment note and each started 15 minutes shall be paid for separately.
If loading lasts longer, it will be recorded in the consignment note and each started 30 minutes shall be paid for separately.
If more than one consignment is loaded at the same loading place, the calculations of loading time will proceed from the total estimated gross weight.
if the vehicle was not ready on the agreed date, time and place.
The consignor who terminates the contract for carriage of goods for the reasons stated above is entitled to compensation for the proven material damage caused to him, but not more than the amount of agreed carriage charge, if the failure to perform obligations by the carrier was caused by the circumstances which could not be controlled by the carrier.
The consignor has a right to refuse the ordered carriage until the time when the carrier starts to fulfil the order. If the carrier has started to execute the order and the order is cancelled, the carrier is entitled to get compensation which would cover his reasonable costs, but not more than the amount of agreed carriage charge.
– The carrier shall check the appearance, marking and the number of packaging units of consignment and will verify the accuracy by comparing it to the information presented in the consignment note. If it is not possible to check them or the information does not correspond to the information presented in the consignment note, the carrier will make a reasoned notation about it on all the copies of the consignment note.
– The carrier shall load small packages and parcel consignments, and the named consignments shall be delivered (from hand to hand) to the place on the ground floor of the building designated by the consignor.
– If possible, the carrier will load small consignments. The carrier is responsible for his activities in the freight space and at the tailboard. If the carrier participates in the loading process outside freight space, he will operate in the name and responsibility of the consignor.
5.2. The carrier shall ensure the availability of harnesses, considering 1 harness for each pallet row, plus 2 harnesses for the last row. If the character of consignment requires special securing equipment or additional harnesses, the consignor will be responsible for the availability thereof; if agreed, the carrier may assist in acquiring additional securing equipment.
5.3. The carrier has a right to choose an appropriate vehicle, freight space and transport route for the carriage of consignment, and at his discretion he may use direct transport or transhipment.
if the consignor does not confirm the notations made by the carrier on the consignment note.
The carrier who terminates the contract for carriage of goods for the reasons stated above is entitled to compensation for the costs incurred, but not more than the amount of agreed carriage charge, if the failure to perform obligations by the consignor was caused by the circumstances which could not be controlled by the carrier.
5.5. If the consignee refuses to receive goods at the unloading place, the carrier has a right to claim compensation from the consignor for additional expenses.
5.6. If the consignor wants to re-address the consignment without unloading it from the vehicle, it would mean making of a new contract for carriage of goods. The carrier has a right to refuse to make a new contract and he may require unloading of the consignment.
5.7. If the carrier notices at some stage of the carriage that the gross weight of the consignment is higher than declared by the consignor, he has a right to unload the excess load immediately at the expense and risk of the consignor.
5.8. If the gross weight of the consignment does not exceed the limits of estimated gross weights provided by legislation of general application, carriage of the load exceeding the estimated gross weight declared in the consignment note will be paid for by double tariff.
5.9. The consignor shall compensate the carrier all fines and fees collected from the carrier in connection with incorrect indication of gross weight of the consignment or other incorrect information given about the consignment.
3) it is found that the classification, packaging and/or marking of dangerous goods is not in conformity with rules applicable to their carriage.
5.11. The carrier shall refuse to follow any instructions of the consignor which would lead to the violations of rules regulating driving time and speed or working and rest time of the driver.
6.1. The carriage and related service charges and expenses shall be paid by the time of handing over of goods, unless agreed otherwise.
6.2. The consignor, as the person giving the assignment to the carrier, irrespective of the agreement on payment of carriage charges, shall pay for carriage and other taxes if the carrier has not redeemed the consignment or has refused to pay carriage charges, or is incapable of making the payment for carriage. Carriage charges for perishable goods or consignments of low value shall be paid in advance.
6.3. If the work assignment accepted by the carrier is interrupted under circumstances not controlled by the carrier (e.g. strike, work stoppage), the carrier has a right to receive compensation for his work performed and costs incurred.
6.4. Carriage charges are calculated individually for each consignment according to its estimated gross weight. Carriage charges shall be calculated by running meters of the freight space in the case of consignments which are difficult to load because of their different shape or inferior quality of packaging and when the conventional make-up of load is impossible together with other consignments.
6.5. Actual consignment data is taken into account for calculation of carriage charges.
Consignments of estimated gross weight over 1000 kg – with the accuracy of 100 kg.
– In addition to actual carriage charges, other expenses arising during carriage are collected according to effective price lists or actual costs (including payments for additional securing equipment and payment for the return of the signed consignment note).
– Supplementary charges are prescribed for the carriage of consignments which fully or partially contain dangerous substances.
– Reward of waiting is collected for exceeding the time limit for loading.
– Sending of written reminders may be for pay according to the carrier’s price list.
– The consigner is not allowed to calculate set-off even when the consignor has claims on the carrier.
– All costs incurred in the collection of invoices not paid on time shall be covered by the debtor.
– If the limitation date of the exercise of claim has arrived, the creditor has a right to encumber the movables of the debtor in his possession by a pledge.
6.8. ‘Cash on delivery’ charge. The carrier shall undertake the responsibility for supervision of the collection of ‘cash on delivery’ charges only with prior written agreement and when the carriage documents of the consignment bear notation about it and the amount and method of payment of the ‘cash on delivery’ charge is explicitly indicated and defined. The carrier has a right to require additional payment for it, as well as covering of all related additional costs.
Filing of complaints and claims will be pursuant to the procedures laid down in the Law of Obligations Act and the CMR Convention. Claims shall be filed in writing with documents giving reasonable grounds of the claim.
Settlement of claims will be pursuant to the legislation of the Republic of Estonia and international agreements ratified by the Republic of Estonia.
1. This Convention shall apply to every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a contracting country irrespective of the place of residence and the nationality of the parties.
2. For the purpose of this Convention, “vehicles” means motor vehicles, articulated vehicles, trailers and semi-trailers as defined in article 4 of the Convention on Road Traffic dated 19 September 1949.
3. This Convention shall apply also where carriage coming within its scope is carried out by States or by governmental institutions or organizations.
5. The Contracting Parties agree not to vary any of the provisions of this Convention by special agreements between two or more of them, except to make it inapplicable to their frontier traffic or to authorize the use in transport operations entirely confined to their territory of consignment notes representing a title to the goods.
Estonian Freight Forwarders Association and Estonian Chamber of Commerce and Industry have agreed on August 1st, 2000 to amend and complement the General Conditions of the Estonian Freight Forwarders Association agreed between aforesaid parties on June 6th, 1995 according to the General Conditions of the Nordic Association of Freight Forwarders NSAB 2000, valid since June 1st, 1998. Usage of the General Conditions of the Nordic Association of Freight Forwarders is based on their acceptance given on May 6th, 1995.
On 9 June 2011, the Estonian Logistics and Freight Forwarding Association (ELFA) and the Estonian Chamber of Commerce and Industry agreed to amend the wording of clause C of §27 of the General Terms and Conditions to ensure consistency with ELFA’s General Terms and Conditions for Warehousekeepers which entered into force on 1 February 2011. The amendments will enter into force on 13 June 2011.
Present conditions will be effective from January 1st 2001.
The conditions give the customer in all respects at least the degree of protection stipulated by the FIATA Model Rules for Freight Forwarding Services (1996 version).
The General Conditions of the Estonian Freight Forwarders Association set forth the freight forwarder’s and the customer’s rights and obligations, including the freight forwarder’s liability under various transport law conventions, such as CIM, SMGS, CMR, the Hague-Visby Rules and the Warsaw Convention.
Unless otherwise expressly agreed, these conditions will apply to the members of the Estonian Freight Forwarders Association, as well as other parties having agreed to apply them.
advice in matters of transport and marketing.
The freight forwarder may carry out these services either on his own account or as intermediary.
when he has expressly or impliedly accepted liability as carrier (contracting carrier).
when in connection with carriage of goods by road.
B. Under §§ 24 – 26 the freight forwarder has a liability as intermediary, with regard to carriage of goods not covered by article A.
when he has accepted responsibility for the services on his own account.
These conditions apply equally to the persons of whose services the freight forwarder makes use for the performance of the contract as to the freight forwarder himself, irrespective of the grounds for the claims against the freight forwarder and such other persons. The aggregate liability of the freight forwarder and such other persons is limited to what applies to the freight forwarder’s liability under these conditions. When the freight forwarder has undertaken to render services for his own account, general practice and generally accepted terms are applicable in so far as they do not contradict these conditions.
In other cases than those mentioned under subsections a-c the freight forwarder is responsible as intermediary without liability for other parties than his own employees.
D. With regard to warehousing, the conditions of § 27 apply.
In the present conditions, the customer is the party that has concluded a contract with the freight forwarder, or that has acquired the rights and duties of that party. The liability of the customer is enacted by § 28.
It is incumbent upon the parties to provide each other information necessary for the performance of the contract. The freight forwarder undertakes to collect, take care of and accomplish the transport of goods in accordance with the contract and in a suitable way for the customer with generally used means and routes of transport.
Instructions to the freight forwarder concerning the scope of the contract shall be given directly to him. Information contained in the invoice stating that goods have been sold cash on delivery or a declaration of value specified in the dispatch instructions does not therefore mean that the freight forwarder has undertaken to collect the invoice amount or sign insurance.
It is the duty of the freight forwarder to prove that he has protected the customer’s interests according to the contract.
Should the freight forwarder, or any of those for whom he is responsible, wilfully have caused damage, delay or other loss, he may not invoke the rules in these conditions, which exonerate him from or limit his liability, or alter the burden of proof, in cases it is in conflict with § 23.
The freight forwarder is responsible for ensuring that the goods arrive within a reasonable time (without a time guarantee). When assessing such reasonable time, regard shall be had to information as to the expected time of arrival stated by the freight forwarder in his marketing or in connection with the signing of the contract.
– delivery at a fixed date has been presented by the freight forwarder in a written quotation that was accepted by the customer.
If becomes necessary for the freight forwarder in the performance of the contract to act before seeking instructions, he does so at the customer’s risk and for his account.
If the risk of depreciation of goods already taken over arises or, there is a danger to persons, their property or to the environment, and the customer cannot be reached, or should he not, upon being requested to remove the goods, arrange to do so, the freight forwarder may take appropriate measures in respect of the goods, and, if necessary, for example sell the goods in an appropriate manner. The freight forwarder can, depending on the circumstances and without notice, sell, render harmless or destroy goods which are in danger of becoming worthless or extensively depreciated, or which give rise to danger.
After deduction of reasonable expenses connected with the sale, the sum received from the sale shall be promptly reported to the customer.
The freight forwarder shall notify the customer as soon as possible about measures that have been taken, and, upon request, supply evidence of any expenses in connection herewith, as well as prove that he has exercised due diligence in limiting costs and risks.
For such expenses the freight forwarder may demand a special expense charge.
The freight forwarder has a duty to notify a claim against a third party, when goods have been damaged, delayed or when some other loss has occurred due to third party’s acts or omissions. The freight forwarder shall inform the customer and consult with him in order to take such steps as are necessary to present a claim against the party who has caused the damage or who is responsible this. Freight forwarder shall, when requested to do so, assist the customer in his relation to the third party.
If so requested, the freight forwarder shall transfer to the customer those rights and claims that the freight forwarder may have under his contract with a third party.
The freight forwarder’s quotation is based on information relevant to the contract supplied to the forwarder, or else on circumstances that are normal for the contract. If the circumstances do not indicate otherwise, the freight forwarder should be able to assume that the goods that have been handed over from carriage are of such a nature and such a relation between weight and volume that is normal for the type of goods in question.
Unless otherwise agreed, the customer is obliged, upon request, to make advance payment for such expenses that may be incurred in the performance of the contract.
Notwithstanding the customer’s obligations as to payment under contracts of sale or freight contracts with parties other than the freight forwarder, he has a duty upon request, to pay the freight forwarder what is due (advance payment for salary, refund of outlays) against appropriate documentation.
Unless otherwise agreed, when the goods have not yet been delivered for transport in agreed order and condition, and the contract cannot be wholly or partially executed as agreed, the freight forwarder has the right to receive payment for freight and other remuneration. From payment less what the freight forwarder has saved, or could have saved, by not executing the contract.
Although the freight forwarder has given the customer the right to defer payment until the arrival of the goods at destination, the customer has nevertheless a duty, when so requested, to pay the freight forwarder what is due, if due to circumstances beyond the freight forwarder’s control, the contract cannot be performed as agreed provided such non-performance does not engage the freight forwarder’s responsibility under these conditions.
The freight forwarder has the right to special compensation for work in addition to what has been explicitly agreed upon or normally follows from the freight forwarder’s contract. The compensation is determined in accordance with the same principles as those applying to the compensation for the services under the contract.
As regards a refund of outlays in addition to those expressly agreed upon, or normally follow from the freight forwarder’s contract and which have not been paid in advance to him, the freight forwarder has the right to compensation for documented outlays and costs connected therewith.
If the freight forwarder has outlays for the intermediated services, the customer has a duty upon request to refund these amounts subject to appropriate documentation. It is the freight forwarder’s duty to check, and if possible, ensure together with the customer, that the services rendered are within the scope of the contract. The freight forwarder shall, if possible, inform the customer prior to such payment being made.
Should the performance of the contract be interrupted by reason of hindrances beyond the freight forwarder’s control, he is entitled to refund of outlays incurred and work carried out against appropriate documentation.
The freight forwarder has a lien to encumber the goods under his control, for assuring payments, remuneration, warehousing charges as well as for all other amounts due from the customer under contract according to § 2 above.
Should the goods be lost or destroyed, the freight forwarder has right to meet his claims in respect of compensation payable by insurance companies, carriers or others.
Should the amount due to the freight forwarder not be paid at stated times, he has the right to arrange the sale, in a satisfactory manner, of as much of the goods as is required to cover the total amount due to him, including expenses incurred. The freight forwarder shall, if possible, inform the customer well in advance what he intends to do with regard to the sale of the goods.
The freight forwarder is liable as carrier in accordance with §§ 16-23 for loss, depreciation of or damage to goods, occurring between the moments when the goods have been taken over for transport until the moment the goods have been delivered, as well as for delay in delivery.
The carrier’s liability ceases 15 days after the freight forwarder has informed the party who has the right to receive the goods that the goods have arrived, or has forwarded a written notice in this respect at the notified address.
Thereafter, the freight forwarder is liable for taking care of the goods as agreed or follows from his duty to protect the customer’s interests in a diligent manner under § 5.
circumstances which the freight forwarder could not avoid and the consequences of which he was unable to prevent.
The stipulations of a – f notwithstanding, the freight forwarders is liable to the extent that his fault or neglect has caused or contributed to the loss, depreciation, damage or delay.
When assessing the freight forwarder’s liability under points b, d and e, consideration shall be taken of the fact whether, despite his knowledge of the circumstances, the freight forwarder has approved or failed to object to the customer’s measures concerning the preservation of the goods.
Unless otherwise agreed, the freight forwarder is not liable for money, securities and other valuables.
Compensation for loss or depreciation of goods shall be calculated on the basis of their invoice value, unless it is proved that their market value, or the current value of goods of the same kind and nature at the time and place the freight forwarder took over the goods was different from the invoice value. Compensation will not be paid for antique value, sentimental value or other special value.
Freight charges, customs charges and other outlays connected with the transport of the goods lost will also be compensated. Apart from that, the freight forwarder is not obliged to pay any compensation, e.g. for loss of profit, loss of market or other loss of any kind whatsoever.
Compensation for damaged goods shall be paid with an amount equivalent to the extent of depreciation in value. The amount is arrived at by using the percentage of depreciation in value consequent upon damage to the goods, in relation to the value of the goods, as laid down in § 17, par.1. Expenses referred to in § 17, par.2, first sentence, will also be paid to the same extent, but apart from this, the freight forwarder is not obliged to pay any further compensation.
If the freight forwarder has paid the full value of the goods, he may take over title to the goods if he so desires.
A. If the goods are delivered after the date determined under § 6, par. 1, the freight forwarder shall compensate the customer for such direct and reasonable expenses that could have been foreseen as probable consequences of the delay at the time of the conclusion of the contract. The amount cannot exceed a sum corresponding to the amount agreed upon in the contract concerning freight or other compensation.
B. When a time guarantee has been agreed upon, according to § 6, par. 2, and the agreed time of transport has been exceeded, the freight forwarder shall, unless otherwise agreed, credit the customer for the freight or any other compensation agreed upon for the transport. This does not apply if the delay was caused by circumstances beyond the freight forwarder’s own control.
The customer shall be considered to have suffered a loss equivalent to the amount of the freight, as long as it cannot be shown that the amount of the loss is smaller. In the latter case only the amount equivalent to the actual loss shall be credited.
Compensation for delay shall never exceed the amount of the freight.
The client has no right to compensation as if the goods had been lost while the freight forwarder can prove within the terms named above that the goods are not being lost and can be over handed over reasonable time.
For delay, depreciation of or damage to goods the freight forwarder’s liability is limited to SDR 8,33 per kg gross of the part of the goods that has been lost, depreciated or damaged.
If a certain mode of transport has been expressly agreed upon, or if it is proved that loss, depreciation, damage or delay has occurred whilst the goods were being carried by a particular mode of transport, the freight forwarder shall instead be liable in accordance with the law applicable to such mode of transport and the commonly used and generally accepted conditions of carriage, to the extent that these deviate from what is laid down in § 5, par. 2 or §§ 15-22.
The freight forwarder is liable for damage resulting from his lack of due diligence in the performance of the contract. It is the duty of the freight forwarder to prove that he has exercised such due diligence in order to protect the customer’s interests according to the contract.
The freight forwarder is not liable for acts or omissions of third parties in performing the transport, loading, unloading, delivery, clearance, storage, collection or other services rendered by the freight forwarder as intermediary, provided he can prove that he has acted with due diligence in choosing such third parties.
Unless otherwise agreed, the freight forwarder is not liable for money, securities and other valuable.
In calculating the extent of compensation for loss, depreciation, damage and delay, the stipulations of §§ 17-19 and § 20 A., shall be applied correspondingly.
for loss, depreciation of or damage to goods SDR 8,33 per kg gross of the part of the goods which has been lost, depreciated or damaged.
A. For storage of goods in connection with a transport for which the freight forwarder is liable as carrier, he is liable for a period of 15 days after the transport in accordance with the provisions of §§ 15 – 23.
B. When the freight forwarder arranges storage as intermediary the provisions of §§ 24 – 26 apply.
due to the errors or negligence committed by the customer the freight forwarder is obliged to pay duty or other official taxes or to provide security.
In assessing the customer’s responsibility in accordance with a) and b) regard shall be had to the fact that the freight forwarder, despite his knowledge of the circumstances, has accepted or failed to make an objection to the measures taken by the customer in respect of the goods.
Should the freight forwarder, in his capacity of charterer in connection with carriage of the customer’s goods by sea, be obliged to pay general average contribution to the carrier, or become exposed to claims from third parties for reasons stated above, the customer shall prevent any expenditures or losses that may occur to the freight forwarder.
Notice of claim shall be given to the freight forwarder without undue delay. In case of apparent depreciation or damage, notice should be given immediately upon the receipt of the goods.
If notice of claim is given later than within seven days from the day when the goods were received, it is up to the party who gave notice of claim against the freight forwarder to prove that the damage or depreciation of the goods had occurred before the goods were received. If the claimant fails to prove this, the goods will be considered to have been delivered in perfect condition. Notice of claim concerning matters other than damage to, or depreciation or loss of the goods shall be given within fourteen days since the day on which the customer knew or ought to have known about the circumstances forming the basis of the freight forwarder’s liability. If such notice of claim has not been given, the customer has lost his right of claim.
When a particular mode of transport has been agreed upon with the freight forwarder, the statutory provisions and the generally approved conditions applicable to such mode of transport shall apply instead, to the extent that they deviate from what is stated in par.1 above.
upon delay, loss of the goods or other kind of loss from the time at which the delay, total loss or other loss could at the earliest have been noticed.
This expiry period shall apply when the freight forwarder’s place of business is located in Estonia.
When a particular mode of transport has been agreed upon with the freight forwarder, the statutory provisions and the generally approved conditions applicable to such mode of transport shall apply instead, to the extend that they deviate from what is stated in par. 1 above.
Disputes between the freight forwarder and the customer regarding amounts that do not exceed 500 000 EEK or a dispute that arises with a customer who has entered into the contract mainly for private purposes shall be solved in Estonian court, unless otherwise agreed.
Dispute which amount exceeds 500 000 EEK shall be solved by the Arbitration court of the Estonian Chamber of Commerce and Industry Tallinn.
The Incoterms rules or International Commercial Terms are a series of pre-defined commercial terms published by the International Chamber of Commerce (ICC). They are widely used in International commercial transactions or procurement processes. A series of three-letter trade terms related to common contractual sales practices, the Incoterms rules are intended primarily to clearly communicate the tasks, costs, and risks associated with the transportation and delivery of goods. Here are some rules used daily in road transport.
EXW – “Ex Works” means that the seller delivers when it places the goods at the disposal of the buyer at the seller’s premises or at another named place (i.e.,works, factory, warehouse, etc.). The seller does not need to load the goods on any collecting vehicle, nor does it need to clear the goods for export, where such clearance is applicable.
FCA – “Free Carrier” means that the seller delivers the goods to the carrier or another person nominated by the buyer at the seller’s premises or another named place. The parties are well advised to specify as clearly as possible the point within the named place of delivery, as the risk passes to the buyer at that point.
CPT – “Carriage Paid To” means that the seller delivers the goods to the carrier or another person nominated by the seller at an agreed place (if any such place is agreed between parties) and that the seller must contract for and pay the costs of carriage necessary to bring the goods to the named place of destination.
CIP – “Carriage and Insurance Paid to” means that the seller delivers the goods to the carrier or another person nominated by the seller at an agreed place (if any such place is agreed between parties) and that the seller must contract for and pay the costs of carriage necessary to bring the goods to the named place of destination. The seller also contracts for insurance cover against the buyer’s risk of loss of or damage to the goods during the carriage. The buyer should note that under CIP the seller is required to obtain insurance only on minimum cover. Should the buyer wish to have more insurance protection, it will need either to agree as much expressly with the seller or to make its own extra insurance arrangements.
DDU – “Delivered Duty Unpaid” This term means that the seller delivers the goods to the buyer to the named place of destination in the contract of sale. A transaction in international trade where the seller is responsible for making a safe delivery of goods to a named destination, paying all transportation expenses but not the duty. The seller bears the risks and costs associated with supplying the goods to the delivery location, where the buyer becomes responsible for paying the duty and other customs clearing expenses.
DDP – “Delivered Duty Paid” means that the seller delivers the goods when the goods are placed at the disposal of the buyer, cleared for import on the arriving means of transport ready for unloading at the named place of destination. The seller bears all the costs and risks involved in bringing the goods to the place of destination and has an obligation to clear the goods not only for export but also for import, to pay any duty for both export and import and to carry out all customs formalities.
Road Carrier’s Liability Insurance provides an opportunity to insure road carrier’s civil liability under the carriage of goods contract between the customer and road carrier.
Road Carrier’s Liability Insurance provides coverage for the claim filed against the road carrier under the carriage of goods contract between the customer and the road carrier. If goods are damaged or lost during transportation and the carrier incure liability for compensation of the loss or damage to the owner of the goods, then upon the existence of liability insurance the insurance company will cover the loss and damage according to the international CMR Convention.
Our temperature controlled trailers have capacity 33 EUR or 26 FIN pallets with cargo gross weight up to 22800 kg. Cargo volume varies between 82-85 m3, depending on the height of the trailer.
Here is a table with different units mainly used in road transport.


As of now, ten states have legalized recreational cannabis. Twenty-one other states allow medicinal use of cannabis, many of which are expected to legalize recreational cannabis in the near future. Investors have sunk an estimated $10 billion into cannabis-related businesses in 2018, an amount that is expected to reach $16 billion this year. The fast spreading legalization of cannabis presents a unique opportunity for entrepreneurs, businesses and investors to get in on the “ground floor” of this growing market. California, as the largest single market for legalized Cannabis in North America, has attracted outsized attention from potential investors, who also see the state’s legalization as a trend setter for other states. However, would be investors in the California cannabis market often find themselves in a maze of complicated and changing licensing rules and regulations, banking challenges and uncertainties, choice of the appropriate business structure, and protection of potential intellectual property (IP).
You’re a patent prosecutor. You’ve just received an office action. The examiner has rejected your claims. You think the examiner got it wrong. On the technical issues, it looks like the examiner is off base, pointing out elements in the prior art that aren’t really there, and finding motivation based upon the flimsiest bases. Also troubling is that the examiner has based some of the rejections upon rules or precedent that you think are incorrect, both on their face and as applied to your claims. So, it’s time to prepare an office action response. Hopefully this will change the examiner’s mind and will allow your client to receive a patent. Your response may include some preliminary matters, perhaps some claim amendments and recitation of the prosecution history, and the status of various claims. Then you come to the arguments. You want to argue with the examiner’s decisions, to be sure, but that does not mean that you want to be disagreeable. Your job as an advocate is to help the examiner understand your client’s position. There are numerous techniques you can apply in order to argue your case in a more effective manner. Effective advocacy is not limited to legal documents filed in court or an administrative appeal. Even when you are arguing to an examiner, your arguments can be made more effective by the manner in which those arguments are presented.
Among the seven amicus curiae briefs filed Monday with the U.S. Supreme Court in InvestPic, LLC, v. SAP America, Inc., Eagle Forum Education & Legal Defense Fund’s brief argues that the case demands a hearing because the Federal Circuit has added yet another extra-statutory test to the already distorted patentability jurisprudence. In a decision of May 15, 2018 authored by Judge Taranto, the Federal Circuit found the patent claims of U.S. Patent No. 6,349,291 invalid because they were directed to an abstract idea and lacked an inventive concept necessary to save the invention under 35 U.S.C. § 101. In the course of its opinion, the Federal Circuit created a “physical realm” test, which is nowhere to be found in 35 U.S. Code Section 101, having been wholly conjured by judges.
Following our visit to the Supreme Court for Monday’s entertaining oral argument in Iancu v. Brunetti, we can report that the Court seems likely to strike down, on First Amendment grounds, the statutory restriction on federal registration of trademarks that are “immoral or scandalous.” It seems less likely that the case will generate a clear and ringing statement of First Amendment principles. Rather, the justices’ comments at argument seem to presage a limited, cautious opinion. The Court’s main legal concerns appear to be the facial overbreadth of the existing statute and its history of inconsistent application. Congress and the U.S. Patent and Trademark Office (USPTO) may therefore be left with room to try again, seeking a narrower and more predictable approach to limiting the federal registration of dirty words as trademarks (especially given the Court’s main practical concern of the loss of civility represented by the proliferation of such marks).
A company must be strategic in any business decision it makes in order to ensure that it takes the necessary measures to avoid liability for its actions. With respect to patent infringement, and specifically willful patent infringement, the different approaches to determining which measures to take and when to take such measures have been repeatedly challenged in light of a number of court decisions in recent years. To set the scene, the Federal Circuit held in Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (1983) that a potential infringer has an affirmative duty to exercise due care to determine whether or not he or she is infringing. This placed the burden on the potential infringer to seek competent counsel and obtain either a non-infringement opinion or invalidity opinion prior to undertaking the possible infringing activities. This would prevent a finding of willful infringement and treble damages.
Athena Diagnostics filed a petition for en banc rehearing of the United States Court of Appeals for the Federal Circuit’s decision in Athena Diagnostics v. Mayo on April 8, 2019. Amicus briefs are due April 22, 2019. The Athena decision continues to apply U.S. Supreme Court-created common law to the analysis of 35 U.S.C. §101. In its brief requesting rehearing, Athena argues that the decision is “precisely the evisceration of patent law against which the U.S. Supreme Court has long warned” and that the claims at issue were patent eligible, as they are “novel, man-made substances”, “do not preempt natural laws” and “serve a new and useful purpose of diagnosing serious diseases”. Knowles IP Strategies LLC (Sherry M. Knowles) and AddyHart (Meredith Addy) intend to file an amicus brief in support of neither party requesting that the Federal Circuit carry out its constitutional duty to apply strict statutory construction of the literal words of 35 U.S.C. §101 to decide the case (See, Unconstitutional Application of 35 U.S.C. § 101 by the U.S. Supreme Court; 18 J. Marshall Rev. Intell. Prop. L. 144 (2018)).
With a “no-deal” Brexit set to take place this Friday and the Unitary Patent system set to take effect sometime this year, EU patent applicants who want protection in the UK should be aware of the many moving parts to consider. Patent applicants who wish to file for a European patent and receive patent protection in the United Kingdom (UK) should consider whether they want the European patent to have “unitary” effect and be mindful of the UK’s participation in the Unitary Patent system. The UK European Union membership referendum, known commonly as “Brexit,” took place on June 23, 2016. The referendum resulted in a majority of votes in favor of leaving the European Union (EU). A “no-deal” Brexit is set to occur on April 12, 2019 absent of a “new deal” between the UK and EU leaders or an extension.
For life sciences industries and research organizations that utilize any biological resource from India for research, commercial or other purposes, awareness and regulatory compliance with India’s Biological Diversity (BD) Act, 2002 could mean the difference between success and failure. India became a party to the Convention on Biological Diversity (CBD), a multilateral treaty, in 1994. In order to comply with the CBD’s provisions on conservation and sustainable use of biological diversity with fair and equitable benefit sharing arising from utilization of genetic resources, the country enacted the BD Act in 2002, and the corresponding Rules in 2004. In 2012, India ratified the Nagoya Protocol, a supplementary agreement to the CBD that mainly focused on strengthening the implementation of benefit sharing, and subsequently issued the Guidelines on Access and Benefit Sharing (ABS) in 2014.Under the Ministry of Environment and Forests (MoEF), the implementing system of the BD Act is three-tiered. The National Biodiversity Authority (NBA) is at the central level, the State Biodiversity Boards (SBBs) are at the state level, and the Biodiversity Management Committees (BMCs) are at the local level, with each authority performing specified functions.
Text-based search engines, such as Google and Yahoo (remember Ask Jeeves?), were arguably the most important development leading to our now everyday reliance on the Internet. The concept is simple: type a word or string of words into that inviting text box and instruct your favorite search engine to scour the Internet. The search engine does its magic and quickly displays a list of results, typically hyperlinks to webpages containing information the search engine decided was most relevant to your search. As web technology has progressed, search engines have become smarter and more robust. All major search engines can now, in response to text input, spit out a combination of web pages, images, videos, new articles, and other types of files.Of course, IP owners and those interested in capitalizing on the IP rights of others have found many creative ways to leverage search engine technology to get their goods and services to the top of search engine result pages. These techniques have sparked an entire industry—search engine optimization—which has long been the subject of copyright and trademark litigation. Given that nearly all consumers now have camera-enabled mobile devices, search engine providers have invested heavily in “visual” search engine technology. Visual search engines run search queries on photograph or image input, instead of text input. For example, a tourist visiting the Washington Monument can snap a quick photo of the famous obelisk and upload it into the visual search engine. The visual search engine will then analyze (using, for example, AI or other complicated algorithms) various data points within the photograph to identify the target and then spit out relevant information such as the location, operating hours, history, nearby places of interest, and the like. Google (Google Lens), Microsoft (Bing Visual Search), and Pinterest are all leveraging this technology.Critically important for IP owners, visual search engines can be used by consumers to identify products and quickly comparison shop or identify related products. A golfer could snap a photograph of a golf shirt and ask the visual search engine to return results to find a better price on that shirt or to identify a matching hat or pair of pants. Similarly, a music listener could snap a photograph of an album cover and ask the visual search engine to return results for other music in the same genre that might be interesting to the listener. These are only a few examples of the powerful capabilities of visual search engine technology.
Inequitable conduct remains the most powerful defense to patent infringement. In contrast to other defenses to patent infringement that require a claim-by-claim analysis, the defense of inequitable conduct is global. A finding of inequitable conduct renders the entire patent unenforceable. For this reason, the U.S. Court of Appeals for the Federal Circuit has referred to the defense of inequitable conduct as the “atom bomb of patent law” Aventis Pharma S.A. v. Amphastar Pharmaceutical, Inc., 525 F.3d 1334, 1349 (Fed.Cir.2008). Given the tremendous impact of the inequitable conduct defense, the Federal Circuit, in Therasense, Inc. v. Becton, Dickinson and Co., 649 F. 3d 1276 (Fed. Cir., 2011), has significantly increased the burden on patent infringers who assert this defense. Rather than needing to prove materiality in the context of 37 C.F.R. § 1.56 and intent to deceive, Therasense now requires an infringer prove “but for” materiality and a specific intent to deceive—a much higher burden than before. To the disappointment of those who believed that Therasense would spell the demise of inequitable conduct, this defense to patent infringement remains alive and well, although less prevalent than before. See Energy Heating, LLC v. Heat On-The-Fly LLC, 889. F.3d 1291 (Fed. Cir. 2018). Moreover, the Federal Circuit, in Gilead Sciences, Inc. v. Merck & Co. 890 F.3d 1231(Fed. Cir 2018), now seems to recognize an equitable defense (“business misconduct”) separate from inequitable conduct to penalize patentees for unethical behavior committed outside of the confines of patent prosecution before the United States Patent and Trademark Office (USPTO).
In ChargePoint Inc. v. SemaConnect, Inc., (2018-1739) the Federal Circuit inexplicably stated in its opinion that “[i]t is clear from the language of claim 1 that the claim involves an abstract idea—namely, the abstract idea of communicating requests to a remote server and receiving communications from that server, i.e., communication over a network.” The Court further stated, “[w]e therefore continue our analysis to determine whether the focus of claim 1, as a whole, is the abstract idea. As explained below, we conclude that it is.” In reaching this conclusion, the panel rationalized that “the broad claim language would cover any mechanism for implementing network communication on a charging station, thus preempting the entire industry’s ability to use networked charging stations. This confirms that claim 1 is indeed “directed to” the abstract idea of communication over a network to interact with network-attached devices.” As an electrical engineer and patent attorney, I am truly perplexed by this statement. Claim 1 recites numerous physical electrical components, a control device (on/off switch), transceiver to communicate with a remote server and a controller to activate the on/off switch based on communications from the server. The configuration of the components may be anticipated or obvious under the patent statute based on prior art, but they are anything but abstract and do not preempt all ways of charging a vehicle using a network. Congress specifically stated in 35 U.S.C. 101 that there are four statutory categories of patentable subject matter: process, machine, manufacture, or composition of matter. If claim 1 is not a machine, I don’t know what is.
In one of its latest opinions attempting to parse precedent on the subject matter eligibility of software, method of use, and business method patents that arguably involve application of laws of nature or recitations of well-known, conventional methods and techniques, the U.S. Court of Appeals for the Federal Circuit found that a patent directed to a method for administering a naturally occurring beta amino acid to cause an increase in the concentration of a naturally occurring amino acid combination in muscle and brain tissues was subject matter eligible for patent protection (Natural Alternatives Int’l, Inc. v. Creative Compounds, LLC, No. 18-1295, 2019 U.S. App. LEXIS 7647 (Fed Cir. March 15, 2019). The panel’s 2-1 majority decision conceded that the claims at issue involved laws of nature and had similarities to claims the U.S. Supreme Court had found subject matter ineligible but found that the claims possessed sufficient inventiveness beyond natural phenomenon and conventional methods to make them subject matter eligible for patent protection. Since Alice, the Federal Circuit and the federal district courts have been striving to implement and apply the Alice test to methods of use, software, and business method inventions that arguably involve applications of laws of nature and conventional methods. The challenge for the court in these cases has been to determine whether the claims sufficiently go beyond applications of laws of nature and known conventions to qualify as subject matter eligible for patent protection under Section 101. The Federal Circuit has found an inventive concept in several such cases.