Business method abstract idea rejections continue to get reversed at the Board, sparking form over substance debate?
In today’s Anticipat Recap email (March 22, 2018), three decisions at least partially reversed abstract idea rejections for business method claims. One of the decisions, Ex Parte Gershfang et al (PTAB Mar. 22, 2018), even included a dissenting opinion. Here, we report on an interesting decision pulled from another decision, Ex parte Beach (PTAB Mar. 22, 2018).
Before getting into Beach, some context behind the debate about form over substance of patent-eligibility. The Supreme Court in Alice v. CLS Bank struck down the method claims as abstract ideas, but also, importantly, struck down the computer system and computer readable medium claims for the same reason. The Supreme Court did not want clever practitioners to be able to get a claim based on the draftsman art. So just because a claim included computer recitations did not, by itself, make the claims more than an abstract idea. For this reason, it is very rare for the Board to split the claim set baby. For the most part, either all the claims are upheld as abstract or all the claims are reversed.
redeeming the financial instrument for at least one of cash and merchandize [sic merchandise] when the information received from the database indicates the financial instrument is valid.
The Board found claim 58 to be a patent-ineligible abstract idea.
a recognition subsystem configured to read the code off the financial instrument and send a related query to the database for information related to the financial instrument.
So here the Board holds that for a coin machine system claim, the structure of a coin input region, the coin discriminator to count the coins, the printer to print a voucher and the dispenser to dispense the voucher makes a claim patent-eligible.
Beach shows that the Board is willing to affirm some claims that were rejected as abstract ideas while reversing others. This is important because it shows that after Alice, the Board appears to be able to analyze the claims in a very much nuanced manner. Indeed, the extent that structural claim recitations can render a claim not abstract is far from over. But when it comes to a coin counting machine, these structural limitations were sufficient for the Board.
The Board will likely continue to render affirmed-in-part determinations on patent-ineligible judicial exception rejections only in rare cases. But we will report of any trends that develop.
Most people would not consider patent prosecution an electrifying conversation topic. Patent practitioners can be stereotyped as the most likely to wear a pocket-protector. And knowing how much of a practitioner’s time is spent staring at patent documents, it is with little wonder that practitioner social abilities do not measure up to societal expectations. But with the advent of big data, times are changing, as shown in a recent DataCrunch podcast episode that focuses exclusively on getting patents.
The relevant episode, published on March 27, 2018 as”The Patent Law Land Grab“, can be accessed by subscribing to the DataCrunch podcast on iOS and Android devices. You can also access the episode directly on the DataCrunch website here.
In the episode, the podcast walks through the patent process in a way that even someone unfamiliar with patents can follow. Trent Ostler discusses the fundamental balancing act in getting a patent. He also discusses how big data is playing a role in improving the patent prosecution process, including discussing Anticipat.com. Janal Kalis, partner at Schwegman, Lundberg, Woessner, joins the episode as well to discuss this intersection between big data and patent prosecution.
Feel free to check out the podcast, especially this episode. Perhaps after listening to the episode, you will see that the allure of patent prosecution is here to stay. But perhaps not.
This is the first of a series of posts that goes over the ex parte appeal process in patent prosecution. At https://anticipat.com, we are finding tremendous value from analyzing appeals decisions at the PTAB. Here, we go over the standing requirements for when an application is eligible to be appealed. In short, there must be an appealable issue (instead of petitionable) and the application must be twice rejected.
The first distinction that must be made is issues of appeal versus issues of petition. In general, an objection is petitionable whereas a rejection is appealable. However, when the objection is “determinative of the rejection,” the matter may be addressed by the Patent Trial and Appeal Board (PTAB). An example of this a new matter objection for the specification with a Section 112 rejection for the claims. Both can be decided by the Board if the new matter objection is determinative of the Section 112 rejection.
If the issue is indeed an appealable issue, the next question is whether that rejection has been applied twice.
In general, once an application is twice rejected, it is eligible to be appealed. This standard comes from a codified rule: “Every applicant, any of whose claims has been twice rejected, may appeal from the decision of the examiner to the [Patent Trial and Appeal] Board (PTAB) by filing a notice of appeal . . . ” 37 CFR 41.31.
Based on the wording of the rule, one might see some ambiguity as to whether the exact claims must be rejected twice to be eligible for appeal. But there is no such exactness requirement, as established in a precedential Board decision Ex Parte Lemoine, 46 USPQ2d 1420 (Bd. Pat. App. & Inter. 1994). So as long as an application has been rejected twice, it is eligible to be appealed. See MPEP §1204.
And the rejection is not limited to only be for the exact same application. If any claim was rejected in a parent application, and the claim is again rejected in a continuing application, that continuing application is eligible for an appeal. See MPEP 1204(II). This is supported by the same Lemoine decision.
Stay tuned for updates for other interesting information on the timeline of the appeal process.
We have previously reported on the very low reversal rates of abstract idea rejection within tech center 3600, home of business method art. Indeed, over the past few months, the reversal rate has been about 12%, as shown on the Anticipat Research database. But the Federal Circuit has recently pushed the Alice test closer toward patentees, and the Board appears to be following their lead. This is shown in a pair of recently-decided appeals involving business method applications.
In Ex parte Bhogal (PTAB Mar. 19, 2018), the Board found that the claimed method recited more than the alleged abstract idea by “adding a specific limitation other than what is well-understood, routine and conventional in the field.” The Board acknowledged that the claims at issue, like most business method claims, recites generic computer, network and Internet components. But citing Bascom, panel noted that the inventive concept can still be found in the non-conventional arrangement of these pieces.
Here, the appellant had argued that a claimed rendering order prioritization technique is not well-understood, routine, or conventional. The Board found this argument persuasive, noting that the Examiner did not set forth with sufficient specificity or provided any finding that this claimed technique is routine, conventional or well-understood. Importantly, the panel cited to Berkheimer v. HP Inc., No. 2017-1437, slip op. at 14 (Fed. Cir. Feb. 8, 2018) for the proposition that “[w]hether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination.” Without such a factual finding by the Examiner, the Board found that the rejection was improper and reversed.
It is interesting to note that the Berkheimer Federal Circuit decision very recently issued: February 8, 2018. We have seen Board panels quickly adopt Federal Circuit in the past, as reported here. So the Board appears to be going out of its way to use the decision in its analysis. This may signal that the Board is eager to make patent-eligibility holdings at trial consistent with examination.
In another appeal decided the previous day, Ex parte Hoff (PTAB Mar. 16, 2018), the Examiner had argued that there is no requirement to provide “documentary evidence to demonstrate abstractness.” Answer 9. But the Examiner had only looked at the claim elements individually. In response, the Board quoted Bascom that “the inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art.” In view of the Appellant’s explanation of the effect of coordinated claim elements, the rejection does not sufficiently establish that the combined activity of various claim elements, as identified by the Appellant, fails to constitute significantly more than the abstract idea itself.
Both decisions involved applications with claims that have generic, conventional hardware that individually were not inventive. But the Board found in both cases that the Examiner had failed to establish on the record that the unique combinations of the elements were merely conventional or routine. Without such findings, the rejections were reversed.
The PTAB will continue to side with Examiners in affirming many abstract idea rejections of business method applications. But the recent reversals show that a compelling argument lies in the novel arrangement of claim elements. This is especially compelling if the Examiner has not established on the record that these elements are conventional or routine.
We recently reported that the top patent firms (by registered practitioner as featured on a Patentlyo post) pursue ex parte appeals very differently. This, despite apparent equal knowledge of the benefits of pursuing an appeal to further prosecution. While this finding is interesting, pursuing an appeal and winning on appeal are two different things. Here we report on the differences in appeal outcomes along the three firms Finnegan, Fish & Richardson, and Knobbe Martens.
As brief background, we have found that average reversal rates among the various grounds of rejection to be quite stable. In a recent post, we reported that across the entire USPTO, § 101 has about a 20% reversal rate on appeal, §§ 102 and 112 hover at about 50%, and § 103 is around 33%. To look at these firms’ outcomes, we used Anticipat’s Research database and Practitioner Analytics between July 25, 2016 through March 12, 2018.
The above three firms exceed the USPTO reversal rates in almost all aspects. Finnegan first.
For the 59 rejections of § 103 obviousness, 28 were wholly reversed. This is a complete reversal rate of 47%, much higher than the average rate.
Of 16 decisions deciding § 102 anticipation, 12 were wholly reversed. This is a reversal rate of 75%, again much higher than the average rate.
The § 112 rejections were decisively overturned. Of 10 rejections, 9 were overturned. This translates into an 90% reversal rate–very high.
Section 101 was the one ground of rejection that underperformed the rest of the grounds of rejection. Of the 14 decisions deciding § 101 rejections, Finnegan had two reversed. This is a reversal rate of 14%, slightly lower than the average.
These data show that for the most part, Finnegan knows how to pick good candidates for appeal and/or how to advocate for a favorable outcome.
Next Fish. Of the firms analyzed today, Fish has the greatest tolerance for pursuing appeals. Because of this, the reversal rates for some rejections are lower. But this also means an overall greater number of reversals than the other firms.
These data for Fish show slightly lower reversal rates than Finnegan. The reversal rate for § 102 is 66% which is still much higher than average.
Next, the reversal rate for § 103 is also higher than average at 46% wholly reversed.
Next, § 112 falls right under average with a 44% reverse rate.
Next, § 101 has two reversals. Given that there were 15 total decisions with § 101 rejections, this is a 13% reversal rate, which falls slightly below the average reversal rate for this rejection.
Fish’s appeal strategy more closely resembles the Michael Jordan quote: “You miss 100% of the shots you do not take.” Similar to basketball shots, the more a correspondent appeals, the lower the success rate may be. As we have previously reported, Fish has a much greater number of total appeals, implying it pursues appeals more frequently than the others. This may mean that the firm pursues appeals that it is not as confident that it will win on. But like basketball shooters, because of the volume of appeals, it means that more applications will be reversed and thus take advantage of the benefits of pursuing an appeal.
Fish should be recognized for taking more cases to appeal and still succeeding at or close to average reversal rates. If Fish wanted to identify areas for improvement, perhaps § 101 and § 112 would be on the list. While certainly not bad to overturn the Examiner’s 112 rejection 50% of the time, that is about the percentage of all appellants. Same is true for § 101, notwithstanding the challenges of appealing abstract idea rejections.
The third firm is Knobbe. Knobbe files the fewest number of appeals among the three firms. The data show very high reverse rates, but because of pursuing fewer appeals compared to the other firms discussed here, the result is fewer total reversals.
For § 101 rejections, Knobbe has two reversals out of 5, meaning a relatively high reversal rate of 40%. It achieves the same number of reversals with much fewer appeals than Fish and Finnegan.
For § 102, 71% of rejections are wholly overturned. This is higher than the average even though not as high as Finnegan and Fish.
For § 103, 56% of rejections are wholly overturned. This is much higher than the other two firms. Factoring in the six affirmed-in-part rejections on § 103, the number of decisions where at least one claim was reversed is at 67%.
For § 112, 71% of rejections are overturned. This is much higher than average.
The data on Knobbe seem to show something of their appeal strategy. That is, Knobbe tends to appeal cases that they are more sure that they will win on. And it shows in the high reversal rates.
One note about all firms is the reversal rates for obviousness-type double patenting. All these rates are low, but many of the rejections were not argued on appeal. Thus, these summary affirmances imply that the applicant may opt to file a Terminal Disclaimer to overcome the rejection.
These and other law firm-specific outcome data are important in two ways. First, having detailed outcomes for specific grounds of rejection can point out areas for improvement. If a firm is below the average reversal rate for a grounds of rejection (especially below the average for a particular examiner or art unit), there might be some learning opportunities to increase the reversal rate. For example, an area for improvement for Finnegan could be § 101. That being said, achieving two reversals in 15 attempts is not bad.
Anticipat Practitioner Analytics provided an easy search interface that can retrieve all reversed applications for a particular ground of rejection, for an Examiner, his art unit, or technology center. Further, it allows for any customer numbers to be queried if you want to competitively analyze certain filers.
The law firm or customer number analytics has its limitations. For example, just because a law firm has a low reversal rate for § 101 does not mean that they are of worse quality counsel than others. They may, for example, be taking on more difficult cases. But having the internal context of these cases can powerfully guide prosecution strategy.
The second way these data are important in helping to show the optimal level an applicant should appeal. Remember that how often to pursue an appeal affects the reversal rates. A firm such as Knobbe that is more selective in its pursuit of an appeal than a firm like Fish–all advocacy being equal–will have a higher reversal rate, but fewer reversed decisions.
For example, let’s say there are 100 candidate applications that could go up to appeal. For simplicity sake, assume each has a single pending ground of rejection. A Knobbe type of firm only pursues an appeal for its three most egregious cases and pursues claim amendments responses for the rest. In this situation, there’s a high chance these three cases get overturned (because they are the most improper of the bunch). Let’s say that two get wholly reversed, resulting in a 66% reversal rate.
But let’s say a Fish type of firm with the same candidate applications is less choosy and decides to appeal the 10 most egregious rejections. Some of these rejections will not be overturned because they are less clearly improper rejections. So this firm could have a lower reversal rate of 50%. But because the firm decided to appeal more applications, even with a lower reversal rate, that firm is still getting three more notices of allowance with all the benefits of an appeal.
In conclusion, feel free to lookup and monitor appeal decisions using customer numbers on Practitioner Analytics. Armed with the right material, you can see where you or others are strong and see where you have opportunities. This can also be used for showcasing expertise and advocacy in certain areas, e.g., for marketing.
How does the Board incorporate very timely case law in their decisions? How can you use this to your advantage? We consider these questions as we discuss a recent Board decision that reversed an abstract idea rejection while incorporating a very recent Federal Circuit into its analysis.
In a recent decision, Ex parte Jang (March 1, 2018) (available at https://anticipat.com/research?id=104015), the Board reversed an Examiner’s Section 101 rejection. In so doing, the Board panel found that the claimed software invention was not directed to an abstract idea under step 1 of the Alice/Mayo framework. Interestingly, the Board analogized to a Federal Circuit decision that had been decided not six weeks prior.
This recent Federal Circuit decision that the Board cited, Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018), was not merely a cursory citation or a footnote. Rather, the Board specifically analogized to the patent in Finjan in holding that the claims at issue were similarly not directed to an abstract idea. How did the Board incorporate this legal authority into its own decision so quickly?
One thing that can be ruled out is any help from the appellant. Often times, the Board does indeed borrow persuasive arguments from the applicant (including persuasive legal authority). At times, you can see arguments literally lifted from appellants’ appeal briefs or reply briefs, as discussed in this blog post. Not so here. The reply brief was filed in September of 2016, long before Finjan was decided. Plus, the appellant choose not to pursue an oral hearing, which would have given the appellant a chance to address more recent case law. See 37 CFR 41.47 (“Upon a showing of good cause, appellant and/or the primary examiner may rely on a new argument based upon a recent relevant decision of either the Board or a Federal Court.”).
Instead it appears that PTAB judges keep very current on Federal Circuit case law and use it in their own decision drafting. This is somewhat different from examiners, who, in the face of a recent Federal Circuit decision, may have problems addressing the applicability of recent Federal Circuit decision. The Examiners may instead prefer the USPTO to interpret any new Federal Circuit decisions in an official USPTO guideline.
Now that we know that the Board analogizes to recent legal authority, how is this useful? How can you use the fact that the Board regularly cites to recent and relevant case law in reversing Examiner rejections? It turns out that this is most useful in fast-evolving areas of law, such as Section 101. For example, you can cite to the same legal authority that the Board uses to overturn your own Examiner rejections.
As we pointed out in a recent blog post, you can input any application number into the Anticipat Practitioner Analytics input field, and it will show the relevant legal authority for this application. Let’s say that you have an application in the software arts that is meeting stiff Section 101 headwinds. Perhaps, your application is even in the technical space of encryption. Let’s even say art unit 3621 (the same art unit that Ex parte Jang was decided).
After inputting art unit 3621 into the Analytics input field, you will see that the art unit field has legal authority for step 1 of the Alice/Mayo framework. There are three decisions where the Board relied on step 1 of the abstract idea test to reverse the rejection.
In addition to Finjan, this Board decision used two other Federal Circuit cases in reversing the rejection: Enfish and Thales Visionix.
Chances are that if you have an application in this art unit and are facing a similar stubborn rejection, accessing legal authority that the Board found worthy of overturning an examiner can help guide strategy for what is persuasive. At best, the relevant legal authority is also found to be analogous and persuasive in your case. At worst, you are not completely off-base in citing to such a decision since independent judges in this art unit analogized to such legal authority.
The next column, tech center, has even more decisions and legal authority. Finally, the right-most column displays all the tags for this specific tag. This will provide all the legal authority Board decisions.
This practice tip is well-suited for responding to Office Actions as responses under 1.111 because you can quickly use recent legal authority. In theory, this same legal research could guide an applicant preparing for an appeal. This is especially relevant since if judges are using specific legal authority to overturn specific rejections, chances are they will be receptive to such legal authority in your brief. However, due to the substantial delay in reaching a final decision, and due to the volatility of Section 101, some of the cases may be outdated by the time the panel decides your case.
See what Practitioner Analytics can do for your practice. Feel free to give Analytics a 14-day free trial.
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Having the most relevant and current legal authority to advance a particular argument is a time-consuming task. But it is also a very important part of persuasive advocacy in patent prosecution. With Anticipat, we channel PTAB decisions to do much of this work. Anticipat Analytics shows you relevant legal authority (e.g., case law, Guidelines, and MPEP support) that the Board relies on in overturning specific rejections.
The legal authority that the Board relies on to overturn a particular rejection in a given tech center can relevant for responding to a pending Office Action. If it worked on appeal in a related case, that authority might be good to look at in your case. And it isn’t only relevant for a case that you are appealing–it can be persuasive when working with your Examiner.
To understand how to use legal authority on Anticipat Analytics, a little bit of background first. Legal authority goes hand in hand with the corresponding argument. We previously explained how Anticipat Analytics breaks down the most common arguments used by the Board in overturning a particular rejection. The legal authority goes a step further by showing the legal authority relied on in making this particular reversal.
The most common tag for abstract idea is “Abstract Idea – Step 1.” This means that when the Board is reversing abstract idea rejections, most often it does so in step 1 of the Mayo/Alice framework. Within step 1, which legal authority does the Board cite to support its reversal? This is where the legal icon to the immediate right of the tag comes into play.
The Examiner column shown above has the most relevant tags and authority to an application (e.g., they represent Board decisions that have overturned this specific Examiner). But they also have the smallest sample size. The next column, art unit, has more decisions. It provides all the decisions (and legal authority) for this art unit.
The next column, tech center, has even more decisions and legal authority.
Finally, the right-most column displays all the tags for this specific tag. This will provide all the legal authority Board decisions.
This legal authority icon immediately to the right of the abstract idea text is clickable, which reveals the full list of legal authority for step 1 in this tech center. When the legal authority icon is clicked, here is an image of the popup that shows.
Having the relevant legal authority for specific arguments used by judges can help guide strategy in what is persuasive.
Please reach out to us with any questions or comments. We’re standing by for any questions or comments.


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SCOTT H. CARR IS A HIGHLY RESPECTED TRIAL LAWYER and represents clients in the areas of business litigation, legal malpractice, personal injury, products liability, and employment litigation. He enjoys Martindale-Hubbell’s highest rating for competence and ethics and has been repeatedly recognized by his peers as one of the pre-eminent attorneys in California. As a result of his trial skills, he was named Consumer Attorney of the Year for the State of California in 2016.
Notably, Scott was one of the lead attorneys for Sportscaster and Entertainer Erin Andrews in her landmark case against the Nashville Marriott hotel, resulting in a $55 million verdict. His efforts have contributed to increased privacy, security and safety for hotel guests worldwide.
His additional accomplishments include obtaining $11.9 million in a wrongful termination case involving violation of public policy for filing a claim with California’s Division of Labor Standards Enforcement; $10.4 million in a business fraud action relating to the sale of a business; $5.25 Million in a Product Liability action for a defective swimming pool; $4.5 million in a collision at Los Angeles Airport involving a police vehicle and an airline tug; $2 million in confidential settlements for cases involving the failure of a corporation and stock transfer agent to timely transfer stock certificates; $3 million in a legal malpractice action based on an underlying wrongful termination action; $3 million in an action related to a defective golf cart; $5.5 million in a premises liability action involving a defective skylight; $5 million in a Dangerous Condition of Public Property case and $3.7 million in a breach of contract action involving a loan organization company and a bank.
Scott has obtained verdicts and confidential settlements in legal malpractice and personal injury cases in excess of $250 million. In addition, he was instrumental in the settlement of a $2.25 million case involving an automobile collision that resulted in the death of a comedian; a $3 million industrial accident involving brake failure on a loader; a $2.4 million product liability action concerning a household appliance’s ignition of flammable vapors; a $3 million tire tread separation case; and $9 million in a Highway Design case against the State of California.
At trial, Scott’s achievements include: Andrews v. Marriott, a $55 million verdict in a hotel privacy action; McLaughlin v. CLP Mountain High, a $22 million gross verdict in a ski accident case; Ebrahimi v. American Express Bank, Int., $3.2 million verdict in addition to a punitive damages finding, which was a wrongful termination action; Scholz v. State of California, $3.7 million verdict, which involved road design issues; Meruelo v. Marcus & Millichap, $1.3 million verdict, a fraud action against a real estate broker and Schluep v. Gunsenhauser, $1.145 million verdict in a breach of contract action.
In 2005, 2006, and 2008-2019 he was named as a Super Lawyer in Law & Politics’ Southern California Super Lawyers which lists the top five percent of established Los Angeles and Orange County attorneys. In 2018, the same publication named Scott as one of the Top 100 Lawyers in California. He has also been named to the list of ‘Best Lawyers in America’ from 2010-2019.
He previously served in the prestigious position of President of the Los Angeles chapter of the Association of Business Trial Lawyers, where he also served on the Executive Committee and the Board of Governors.
Scott writes regularly and his published articles include: “Tax Implications of Tort Damage Awards,” Los Angeles Trial Lawyers Association, Advocate October, 1992; “23 USC ‘409: The State’s Attempt to Abolish Highway Design Cases,” California Trial Lawyers Association Forum, November, 1994; “Measure of Damages for Interference with a Shareholder’s Ability to Sell Stock,” Association of Business Trial Lawyers Report, Spring and Summer 2003; and “The Reality of Idea Theft,” Consumer Attorneys of Los Angeles, The Advocate, April 2006. He also frequently speaks at seminars and conferences to educate other lawyers on issues related to business litigation and consumer rights.
Scott also gives back to the community through his numerous civic and charitable activities. He was appointed by the City Council of Thousand Oaks to serve on the Board of Governors for the Thousand Oaks Civic Arts Plaza as well as the Board of Directors of the Thousand Oaks Civic Arts Plaza Foundation. For more than 30 years, he has mentored college students through his work as an officer with the Sigma Phi Epsilon Alumni Board for the University of California at Santa Barbara, where he currently serves as President. He was also awarded the Distinguished Alumnus Award for his numerous contributions to Sigma Phi Epsilon, and was the initial recipient of their Exemplary Service Award in 2016. In addition, Scott has long been active in raising awareness and money for various charities including the Juvenile Diabetes Research Foundation and Children’s Hospital Los Angeles.
A graduate of University of California at Santa Barbara, Scott received a B.A. in political science and business economics in 1986. He earned his J.D. from Southwestern University School of Law, Los Angeles in 1991, where he made dean’s list, and was a 1991 recipient of the American Jurisprudence Award in Products Liability and Remedies.
Ebrahimi v. American Express Bank, Int.

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Bone diseases are quite common among the Ukrainian population and occur in most children with leukemia. Therefore, the Corectin preparation has been developed on the basis of fundamental research conducted earlier at the Palladin Institute of Biochemistry of the NAS of Ukraine. Corectin has proved itself to be an effective remedy for the treatment of bone lesions of various genesis, including those occurring in hemoblastoses. The purpose of this research is to assess the prospects for application of Corectin and Glycivit C dietary supplements based on Corectin preparation and to introduce them into production. As a result, it has shown that these dietary supplements can be used as an additional source of glycine for functional normalization of nervous and immune systems. It increases bone density, cleanses the blood, decreases psycho-emotional tension, speeds up alcoholic detoxification, and, possibly, can be used for the treatment of bone and liver diseases and oncohematological pathologies. The obtained results of marketing research testify that bringing the developed supplements to market will be expedient. The trial batches of dietary supplements have been made with involvement of Nutrimed LTD (Ukraine). The specifications for production have been approved and listed in the national registry of specifications. The developed supplements have been endorsed by State Research Center for Food Hygiene of the Ministry of Health of Ukraine and the Marzeev Institute of Public Health of NAMS of Ukraine.
1. Povorzniuk V.V. Diseases of the musculoskeletal system in people of different ages (selected lectures, reviews, articles): in 3 v. V. 2. Kyiv: Express, 2009. 482 p.
2. Bebeshko V.G., Bruslova K.M., Tsvetkova N.M., Volodina T.T., Kopylova O.V., Belinhio T.O., Berezovskyi S.Ia., Petrunko M.P., Boiarskyi V.H., Polianska V.M., Pushkarova T.I., Mishchenko L.P. Preventive measures in children with acute leukemia exposed to ionizing radiation the accident. Evaluation of treatment and preventive measures to correct bone structure in children with acute leukemia, exposed to ionizing radiation due to the Chernobyl accident. Problemy radiatsiinoi medytsyny ta radiobiolohii: zbirnyk naukovykh prats. 2014. V. 19. P. 192-202.
3. Bebeshko V.G., Bruslova K.M., Volodina T.T., Tsvietkova N.M., Liashenko L.O., Pushkarova T.I., Voloshko V.I., Chernysh T.O., Trykhlib I.V. Determining the relationship between amino acid composition of the urine, and bone density in children with acute leukemia for the formation of the group risk hematologic pathology. Likuval’na sprava. 2014. No. 12. C. 34-40.
4. Gulyi M.F., Volodina T.T., Fedorchenko E.Ia., Pechenova T.N., Nazarevskaia N.N. Biosynthesis of rat skin collagen under amino acid imbalance. Ukraynskyi byokhymycheskyi zhurnal. 1978. V. 51, No. 4. P. 421-424.
5. Bruslova K. M. Report on clinical trial of the drug "Corectin" stage I. 2004. 34 p.
7. Yamadera W., Inagawa K., Chiba S., Bannai M., Takahashi M., Nakayama K. Glycine ingestion improves subjective sleep quality in human volunteers, correlating with polysomnographic changes. Sleep and Biological Rhythms. 2007. V. 5, No. 2. P. 126-131.
8. Coyle J.T., Tsai G. The NMDA receptor glycine modulatory site: a therapeutic target for improving cognition and reducing negative symptoms in schizophrenia. Psychopharmacology. 2004. V. 174, No. 1. P. 32-28.
9. Diegelmann R. Collagen Metabolism. URL: http://www.medscape.com/viewarticle/423231 (Last accessed: October 1, 2001).
10. Englard S., Seifter S. The biochemical functions of ascorbic acid. Annu. Rev. Nutr. 1986. N 6. P. 365-406.
11. Vrhovski B., Weiss A.S. Biochemistry of tropoelastin. European Journal of Biochemistry. 1998. V. 258, N 1. P. 118.
13. Bannai S., Tateishi N. Role of membrane transport in metabolism and function of glutathione in mammals. The Journal of Membrane Biology. 1986. V. 89, No. 1. P. 18.
15. Deruelle F., Baron B. Vitamin C: is supplementation necessary for optimal health? J. Altern. Complement. Med. 2008. V. 14, No. 10. P. 1291-1298.
16. Bebeshko V.G., Bruslova K.M., Tsvetkova N.M., Volodina T.T., Pushkareva T.I. Correction of the organic and mineral matrix of bone tissue in children with acute leukemia which are subjected to adverse environmental factors. Informatsiinyi lyst. 2014. 3 p.
17. Scientific materials of the XVII Congress of orthopedists-traumatologists of Ukraine (October 5-7, 2016, Kiev). K.: "Ukrainian Association of Orthopedics-Traumatologists" and "Institute of Traumatology and Orthopedics of NAMS of Ukraine", 2016. 265 p.
18. Fedorenko Z.P., Hulak L.O., Mykhailovych Yu.I., Horokh Ye.L., Ryzhov A.Iu., Sumkina O.V., Kutsenko L.B. Bulletin of National cancer registry of Ukraine N 18. Cancer in Ukraine in 2015-2016. Incidence, mortality, activities of oncological service. Kyiv: Natsionalnyi instytut raku. (National Cancer Institute). 2017. 123 p.
19. Annual report on the health status of the population, sanitary and epidemiological situation and activities results of the health care system of Ukraine. 2015. By ed. Shafranskyi V.V. Kyiv: MOZ Ukrainy, DU «UISD MOZ Ukrainy», 2016. 452 p.
20. Hahn R.G. Dose-dependent half-life of glycine. Urological Research. 1993. V. 21, No. 4. P. 289-291.

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SISTO LIBERATORE vs. TOWN OF FRAMINGHAM (and seven companion cases [Note 1]).
Present: FIELD, C.J., LUMMUS, QUA, & RONAN, JJ.
Although the engineer of a town was its agent in the making and performance of a contract between it and the Federal Works Progress Administration, he did not have authority to bind the town by admissions made by him in a letter purporting to state the facts of an accident occurring in the carrying out of the project to which the contract related.
projects, was properly excluded in the circumstances at the trial of actions against a town with which the Federal administration had made a contract for such a project and the operator of a motor truck assigned to the project by the town with the truck, brought by workmen injured while being transported in the truck from work on the project.
The exclusion of a question as to a custom was not shown to be prejudicial in the absence of an offer of proof.
Even if it was true that the evidence at a trial without jury warranted a finding of the defendant's negligence, a request by the plaintiff for a ruling to the effect was made immaterial by a finding, based on a consideration of all the evidence, that the defendant was not negligent.
A judge sitting without a jury, who is asked to give a correct ruling that the evidence warrants a finding of a certain decisive fact, in making a finding to the contrary upon a consideration of all the evidence irrespective of its sufficiency as matter of law to warrant a finding of the fact, should either give the requested ruling or, if he ignores or expressly refuses it, should make it plain that his finding negativing the fact is based on a consideration of all the evidence and is not the result of an erroneous ruling that as matter of law the evidence is insufficient to warrant a finding of the fact.
The principle, res ipsa loquitur, when applicable, merely permits, but does not require, a finding of negligence.
The mere occurrence of an unexplained accident causing injury does not warrant a finding, by application of the principle, res ipsa loquitur, that it occurred through negligence unless the one sought to be charged with negligence had sole control of the possible source of danger to the injured person.
A judge sitting without jury properly may refuse a request which assumes a disputed fact instead of stating it hypothetically, thereby asking for an implied finding of such fact as well as a ruling of law thereon.
A request for a ruling presented to a judge sitting without jury may be dealt with as a unit as presented; the judge need not correct nor perfect it.
It is improper for a judge sitting without jury to deal with a request for a ruling by the formula, "Granted so far as applicable to facts found"; if some specified fact upon which the request depends is found not to exist or is not found to exist, it is better practice to refuse the request, stating that reason.
EIGHT ACTIONS OF TORT. Writs in the District Court of Natick and the First District Court of Southern Middlesex dated at various dates between May 1, 1941, and October 21, 1941.
Upon removal to the Superior Court, the actions were heard together without jury by Leary, J.
F. G. Lichtenstein & J. H. Lewis, for the plaintiffs, submitted a brief.
W. I. Badger, Jr., for the defendants.
LUMMUS, J. These are eight actions of tort, four brought against one Bolieau, and four brought against his alleged master, the defendant town, to recover damages for bodily injuries sustained while the several plaintiffs were returning from working as laborers employed by the Federal Works Progress Administration, commonly called the W. P. A., upon a project of improvement of a road leading to the town's water pumping station. The work was being done under a contract between the town and the W. P. A. whereby both the town and the Federal government were to contribute toward the necessary expense. A part of the contribution of the town was the use of its and truck and the payment for the services of its operator, the defendant Bolieau, who was assigned by the town to duty on the project. He was instructed by the town engineer to transport W. P. A. laborers to and from work. There was no evidence that he had any responsibility for the condition of the truck.
The truck had a hydraulic dumping device, controlled by levers worked from the operator's seat, by which the front of the body was lifted up and the load was dumped at the rear. The plaintiffs on February 21, 1941, were riding in the body of the truck by direction of their foreman. While they were thus riding the front of the body lifted up without any manipulation of the levers. They were dumped out into the road, and hurt.
The judge found that the town was not under contract with the W. P. A. to transport the plaintiffs; that the truck was not in the control of the town; that the plaintiffs were not riding as passengers for consideration moving to the town nor on business of the town; that the town was not negligent in the maintenance of the truck; and that Bolieau was not negligent. He also found, warrantably, that Bolieau was not acting as servant of the town, but was under the control of the W. P. A. Wall's Case, 293 Mass. 93. Parker v. Taylor, 295 Mass. 51, 55. Gates's Case, 297 Mass. 178. Donnelly's Case, 304 Mass. 514. He found generally for the defendants.
letter written by the town engineer after the occurrence, purporting to state the facts. Although the town engineer was agent of the town in the making and performance of the contract, his letter did not relate to those matters. He was not authorized to make admissions for the town, much less for Bolieau. Burgess v. Wareham, 7 Gray 345. Conklin v. Consolidated Railway, 196 Mass. 302. Cleary v. First National Stores Inc. 291 Mass. 172. Parsons v. Dwightstate Co. 301 Mass. 324.
The contract provided that all operations should be done in conformance with the rules and regulations of the W. P. A. The plaintiffs excepted to the exclusion of "W. P. A. safety bulletin No. 3," issued before the date of the occurrence by the W. P. A. director for Massachusetts, which provided that dump trucks were not to be used for transporting workers unless accidental dumping was guarded against by chains or bolts. That bulletin was properly excluded. It was intended to govern the conduct of officials of the W. P. A. There was no evidence that Bolieau knew of it. He was found not to be acting as servant of the town. The town was not in control of the truck and did not undertake to transport the plaintiffs, according to the findings.
The question asked of a W. P. A. official as to the custom in other towns with respect to transporting W. P. A. workers was properly excluded. There was nothing to show what contracts existed between the W. P. A. and other towns, or how general any custom was. Besides, the exclusion was not shown to be harmful, for no offer of proof was made. Simon v. Berkshire Street Railway, 298 Mass. 454, 456.
Coming to the requested rulings in the actions against Bolieau, the second, seventh and seventeenth requests were in substance that the evidence warranted a finding that he was negligent. Even if that was true, the requested rulings were made immaterial by the finding, apparently made after consideration of all the evidence, that negligence of Bolieau was not proved. Brodeur v. Seymour, ante, 527, 529-530. Dangelo v. Farina, 310 Mass. 758.
judge in making his decision does consider all the evidence, and his decision does not result from any conviction that the evidence is insufficient as matter of law, he need not hesitate to grant such a requested ruling if he believes it to be correct, instead of raising a really moot but nevertheless dangerous question by refusing or ignoring it. Strong v. Haverhill Electric Co. 299 Mass. 455, 456. Marquis v. Messier, 303 Mass. 553, 555, 556. United States Fidelity & Guaranty Co. v. Sheehan, 308 Mass. 321, 323, 324. Dangelo v. Farina, 310 Mass. 758, 759. Hoffman v. Chelsea, ante, 54. If in such a case, however, a judge chooses to take the opposite course of refusing the requested ruling, either expressly or impliedly by ignoring it, and decides the case against the party presenting the request, he should make such findings, stated to be findings of fact upon all the evidence, as will show that his decision is not the result of any ruling that the evidence is insufficient as matter of law to warrant a finding in favor of that party. Hoffman v. Chelsea, ante, 54. Brodeur v. Seymour, ante, 527, 529-530. The number of troublesome and apparently unnecessary questions that continue to come to this court upon such requests indicates that judges often fail to take either course definitely and unmistakably.
The fourth request in the actions against Bolieau, that "the doctrine of res ipsa loquitur applies and that the defendant was negligent and therefore the plaintiff[s] can recover," is founded on a misconception of that "doctrine." That "doctrine," where it applies, merely permits, but does not require, a finding of negligence. Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234. Garrett v. M. McDonough Co. 297 Mass. 58, 60.
The third and fifth requests in those actions asked in substance a ruling that the unexplained dumping "is evidence of negligence sufficient to warrant [sic] the plaintiff[s] to recover." That is true, provided the case is one of res ipsa loquitur. The requests assume that it is. But in order for the occurrence of the injury to warrant a finding that Bolieau was negligent, he must have had the sole control of the possible sources of danger. Wilson v. Colonial Air Transport, Inc. 278 Mass. 420.
Randazzo v. Wheaton, 278 Mass. 536, 539. Lynch v. New York, New Haven & Hartford Railroad, 294 Mass. 152, 161, et seq. Vozella v. Boston & Maine Railroad, 296 Mass. 491, 493. McCabe v. Boston Consolidated Gas Co. 314 Mass. 493, 496. Such sole control could not be assumed, for on the evidence a finding that Bolieau had such control, even if warranted, was not required. See Memishian v. Phipps, 311 Mass. 521, 525.
The granting of those requests would have implied a finding that he had such sole control. But "on the law side of the court a judge cannot be required to make any express findings of fact," and he can no more be required to make an implied finding. Matter of Loeb, ante, 191, 196. True, he may be required to rule upon possibly material questions of law not shown to have become immaterial because of facts found, subject to the limitation on practical grounds stated in Barnes v. Berkshire Street Railway, 281 Mass. 47, 50, 51. Ordinarily requests for rulings serve to separate the law from the facts by stating the facts hypothetically and requiring a ruling upon the legal result of the facts stated. Graustein v. Dolan, 282 Mass. 579, 583. Langdoc v. Gevaert Co. of America, Inc., ante, 8. But where a request assumes a disputed fact, instead of stating it hypothetically, the party presenting the request goes beyond his right to a ruling of law, and asks also an implied finding of fact which the judge is not required to make. The judge does his full duty when he makes rulings of law upon proper request, and decides the case. Davis v. Boston Elevated Railway, 235 Mass. 482, 494, 495. Memishian v. Phipps, 311 Mass. 521, 522, 523. Codman v. Beane, 312 Mass. 570, 574.
finding of a disputed fact as well as a ruling of law upon it, the request is properly refused. Dow v. United States Fidelity & Guaranty Co. 297 Mass. 34, 40. Shay v. Gagne, 275 Mass. 386, 390. Callahan v. Boston Elevated Railway, 286 Mass. 223, 226. Simpson v. Eastern Massachusetts Street Railway, 292 Mass. 562, 565, 566. Accordingly there was no error in the refusal of the requests under discussion.
The other requested rulings in the actions against Bolieau that were refused were shown by specific findings of fact to be inapplicable to the facts as found.
The requested rulings in the actions against the town that were refused were rendered moot by specific findings of fact. We may observe, however, that the formula adopted by the judge in dealing with some of them, "granted so far as applicable to facts found," is obscure and not to be approved. There was no occasion to grant any requested ruling as to the legal effect of facts stated hypothetically that did not conform to the true facts as found. A more appropriate disposition would have been to refuse the requested ruling on the ground that some specified fact upon which it was made to depend was not found to exist, or was found not to exist. Commonwealth v. Hull, 296 Mass. 327, 336, 337. Wilson v. Birkenbush, 305 Mass. 173, 177. Himelfarb v. Novadel Agene Corp. 305 Mass. 446, 448. Barry v. Sparks, 306 Mass. 80, 85, 86.
[Note 1] The companion cases are by Michael DeLuca, George Towne, and Amedeo Ceccaroni against the town, and by the same persons and Sisto Liberatore against Raymond F. Bolieau.

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§ 1. This notice applies to labour market occupational disease insurance.
§ 2. The responsible actuary shall be employed in the labour market occupational disease insurance. Appointment and dismissal of the responsible actuary may only be carried out by the Board of Directors. The post of responsible actuary cannot be reconciled with the post of Director or member of the Board of Directors of the labour market occupational disease insurance.
1) Actuarial training from a Danish University (URcand.act.).
c) courses in Danish insurance law and insurance accounts equal to the actuarial education at undergraduate level from a Danish University or equivalent.
3) an education akin to nr. 1 (as MSC, MSC State., Cand.Scient. oecon.) or an equivalent foreign degree. Training must be supplemented with courses in insurance mathematics, as well as courses in Danish insurance law and insurance accounts equal to the actuarial education at undergraduate level from a Danish University or equivalent. Training must be supplemented with courses in addition to this equivalent to the mandatory courses in mathematics, which are included in life insurance actuarial education at graduate level from a Danish University.
(2). The responsible actuary shall after the end of the paragraph 1, nr. 1, said training have attended practical actuarial work within life insurance mathematics, workers ' compensation insurance or in the labour market occupational disease insurance full time for at least 5 years within the last 10 years. At least 1 of the 5 years must be in close cooperation with a person in charge of the actuary in the mentioned companies.
(3). The responsible actuary shall after the end of one of those referred to in paragraph 1, no. 2, 1. sentence, or (1) (8). 3, 1. sentence referred to education have participated in practical actuarial work for life insurance companies, lateral pension funds or labour market occupational disease insurance full time for at least 6 years within the last 10 years. The responsible actuary shall after the end of one of those referred to in paragraph 1, no. 2 or 3 courses (including the herein mentioned additional courses) have been working closely with a responsible actuary in one of the companies referred to in the first sentence in at least 1 of the 6 years.
(4). The responsible actuary must, as a minimum, have obtained a thorough knowledge of the preparation of the security plan, statement of provisions and the drafting of the annual report to the FSA.
§ 4. When the Board has hired a responsible actuary, this must be reported to the FSA within 14 days after the appointment.
(2). The Board shall by notification, in accordance with article 3. (1) a declaration that the responsible actuary is in compliance with the requirements under section 3.
(3). When the responsible actuary dismissed or resigns as a responsible actuary shall the Board of Directors and the responsible actuary no later than 1 month after the termination of employment to submit each report to the FSA about the background to this.
§ 5. The responsible actuary shall have access to all the information which he considers necessary for the performance of duties, including Board Protocol. Aktuaren must give the Danish financial supervisory authority the information necessary for the assessment of labour market Occupational security financial position.
(2). The Board of Directors shall draw up a functional description of the responsible actuary. Functional description should contain an overall description of the tasks to be performed in the capacity of the responsible actuary. Functional description can also contain a description of other tasks, as the responsible actuary performs as part of the operation of the labour market occupational disease insurance.
(3). Functional description should, if other employees performing tasks for the responsible actuary, parent indicate the distribution of tasks. Functional description should also contain the broad outlines of the person in charge of the aktuars delegation of tasks, including for the responsible aktuars the subsequent verification of the delegated tasks.
§ 6. In connection with the adoption of the annual report of the Board of Directors shall be the responsible actuary draw up a written report to the Board of Directors.
(2). Actuarial report shall contain all the essential conclusions of relevance for financial reporting from aktuarens report to the FSA, see. § 7.
(3). Actuarial report shall contain a list of the year carried out reviews and comments.
(4). It must be stated whether the report of actuary responsible actuary has received all the information that is requested.
(5). If the person in charge of the aktuars control implies that the annual report in accordance with the person's perception does not give a true and fair view of the company's actuarial conditions, actuarial report presents separate disclosure thereon.
(6). Actuarial report must be signed by the responsible actuary and presented to and signed by the entire Board of Directors.
(7). No later than 10 days after the labour market occupational disease Insurance Board has approved the annual report, copy of the actuarial report be received in FSA.
(8). The Board of Directors must be familiar with all other significant conclusions in aktuarens report than those referred to in paragraph 2.
§ 7. The responsible actuary shall annually submit a report to the FSA.
(2). The report must be the Danish financial supervisory authority not later than 1 month after the labour market occupational disease Insurance Board has approved the annual report for the year, the report relates to.
(3). The Danish financial supervisory authority may, on application, grant a derogation from the time limit laid down in paragraph 2.
§ 8. The report must in Setup and content shall be drawn up in accordance with the entries listed in annex 1. Sections and paragraphs of the report must have the same numbering as in annex 1.
(2). The report must have a table of contents with page statement of the points in the report.
(3). Find the responsible actuary, that under each section are additional conditions that have to be referred to the responsible actuary is bound to include these, possibly under the independent headlines in section 8.
(4). The responsible actuary must sign the report.
§ 9. The report can also act as an actuarial report referred to in article 6. § 6. In this case, supplementary report must comply with the provisions of paragraphs 2 to 4.
3) point 1.6., which shall contain separate information about the annual report after aktuarens opinion, do not give a true and fair view of the company's actuarial conditions if aktuarens control implies that this after the person's perception is the case, see. § 6, paragraph 5.
(3). The report must be submitted and signed by the Board of Directors, see. § 6, paragraph 6.
(4). The report must be received in the Danish financial supervisory authority, not later than 10 days after the labour market occupational disease Insurance Board has approved the annual report for the year in the report relate. § 6, paragraph 7.
§ 10. The notice shall enter into force on the 1. November 2009.
(2). At the same time repealed Executive Order No. 62 of 8. February 2008 on the responsible actuary in labour market occupational disease insurance.
1.1. the Aktuaren shall brief express the conditions in which aktuaren finds is particularly important, and which are mentioned in the other sections. Set out below for essential launched initiatives and significant changed assumptions and assessment principles and its importance for the future development of Occupational labour market security.
(c)) the injury cost per full-year workers.
Aktuaren must also indicate how this year's contribution revenue is fixed.
1.3. If audit of the hearing contains specific comments of actuarial nature, aktuaren inform and comment on these observations. Aktuaren must explain what measures including observations may have given rise to.
d) movements in the record» transferred to next year '.
2.2. Aktuaren assessing the size of the entry» transferred to next year ' and explain that the size of the corresponding to that entry with great probability could intercept expected fluctuations in compensation payments, provisions and value of assets. Aktuaren should explain to the industry group associated pool for application of profits and losses is sufficient to eliminate unforeseen fluctuations in the annual contribution.
2.3. the Aktuaren shall make a comparison between this year's accounts and the year of contribution revenue. Aktuaren must explain the differences between accounts and defined contribution revenue.
2.4. Aktuaren will be conducting an analysis of costs.
2.5. Aktuaren must carry out a risk analysis of calculation base risk factors.
2.6. Aktuaren must make an analysis of this year's return on investment.
3.1. Aktuaren assessing labour market Occupational security investment profile on the basis of the statement of entry» transferred to next year ' in point 2.1. Aktuaren must indicate whether the amount of lines transferred to next years ' has given the labour market occupational disease insurance rise to change (or thinking about changing) investment profile.
4.1. Aktuaren must draw up an overview of the size of reserves for ongoing services and the amount of other compensation provision for the last five years.
4.2. the Aktuaren shall give an account of the scope and importance of capitalization.
4.3. Aktuaren must map to account for the calculation of provisions for annuities. Aktuaren shall also set out the course of the year provisions for annuities. The statement must be made for provisions for damages pending before the 1. January 2008 and for provisions for damages pending the 1. January 2008 or later.
4.4. Aktuaren must briefly outline for calculation of other compensation provision. Aktuaren must also account for this year's course of other compensation provision. The statement must be made for provisions for damages pending before the 1. January 2008 and for provisions for damages pending the 1. January 2008 or later.
4.5. Aktuaren must account for commitments outside the balance sheet.
5.1. the Aktuaren shall describe the labour market occupational disease insurance reinsurance principles, including labour market Occupational security justification for the chosen principles and aktuarens evaluation thereof.
5.2. Aktuaren must inform and comment on this year's result of reinsurance.
5.3. Aktuaren shall inform the expectations for the future, including the assessment of whether to draw less/more reinsurance, that conditions remain reassuring.
6.1. If the FSA has given labour market occupational disease insurance specific injunctive relief or similar on the follow-up through the aktuarens account, aktuaren account for this.
7.1. the Aktuaren shall give an account of how the aktuaren controls the actuarial content in labour market Occupational security activities and material.
8.1. Here can indicate conditions that is not attributable to the above points or sections in the person in charge of the aktuars report, incidentally, but as aktuaren deems it appropriate that the FSA is aware of.