Washington, D.C. — The Federal Circuit ruled on two patent infringement decisions, Los Angeles Biomedical Research Institute v. Eli Lilly & Co. and Eli Lilly & Co. v. Los Angeles Biomedical Research Institute, that involve Indianapolis-based Eli Lilly and Company.
These companion cases pertain to a pharmaceutical patent, U.S. Patent No. 8,133,903 (“the ’903 patent”), owned by Los Angeles Biomedical. Also at issue is one prior art reference, International Patent Application No. WO 01/80860, published Nov. 1, 2001, common to both lawsuits.
The question remains whether a person of skill in the art would have had a reason to combine [the three cited references relating to the medical condition] and would have had a reasonable expectation of success from doing so. Because the Board’s obviousness analysis was based on an erroneous construction of the claim language and an overly broad interpretation of [one of the references], and because the Board did not address the record evidence summarized above, we remand for the Board to make new findings as to whether there was an apparent reason to combine the prior art references and whether that combination would have rendered [the treatment] obvious.
Washington, D.C. – The U.S. Patent and Trademark Office (“USPTO”) recently announced the release of the Patent Application Alert Service. This system provides customized email alerts to the public for free when patent applications of interest are published. Additionally, the system offers direct access to the published applications that meet users’ search criteria.
After receipt of these customized email alerts, the public may identify prior art for “pre-issuance” submission into these applications. The pre-issuance submission process was established under the America Invents Act and, to date, the Office has received more than 2,600 submissions across all technologies. More information on the pre-issuance submission program and how members of the public can participate can be found here.
The idea for the patent application alert service came from a public roundtable held at the USPTO in April 2014 where the USPTO solicited input regarding the use of crowdsourcing and pre-issuance submissions to identify relevant prior art. The USPTO expects that this new service may be used to enhance the quality of examination and issued patents.
Atlanta, Georgia — Verint Systems Inc. (“VSI”) of Melville, New York and its wholly owned subsidiary Verint Americas Inc. (“VAI”) of Alpharetta, Georgia (collectively, “Verint”) have sued Interactive Intelligence, Inc. of Indianapolis, Indiana in the Northern District of Georgia for infringement of twenty separate patents; these patents have been registered with the U.S. Patent Office.
Verint is engaged in the business of inventing, developing, manufacturing, selling, installing, and/or distributing computer software and hardware products and systems. The products and systems are directed to, inter alia, the analysis, recording, monitoring, transmission, and/or security of electronic communications, such as telephonic, facsimile, and e-mail communications to and from contact centers and call centers which handle incoming and/or outgoing contacts with actual and prospective customers and clients. Verint’s technology can provide an end user with the ability to capture, analyze and act on large volumes of complex information sources, such as voice, video, and unstructured text, which can enhance the ability of organizations of all sizes to make better decisions based on such information. Verint’s main location for research and development relating to recording technology is located at VAI’s facility in Georgia.
Verint’s products and systems are used by more than 10,000 organizations in over 150 countries, including over 80 percent of the Fortune 100. For example, Verint’s workforce-optimization and voice-of-the-customer solutions are designed to help organizations enhance customer-service operations in contact centers, branches, and back-office environments. This can increase customer satisfaction, reduce operating costs, uncover revenue opportunities and improve profitability. Verint uses its core competencies to develop highly scalable solutions with advanced, integrated analytics for both unstructured and structured information. Verint asserts that it has expended substantial resources inventing and developing this technology. Verint has licensed one or more of its patents to others in the industry through its Open Innovation Network (“OIN”) licensing program.
Defendant Interactive, a competitor of Verint, is in a similar business. It manufactures, uses, sells, offers to sell, installs, distributes, exports, and/or imports computer software and hardware products and systems directed to and for use in connection with methods involving the analysis, recording, monitoring, transmission and security of electronic communications, such as telephonic communications to and from contact centers and call centers.
Verint contends that it is the sole owner of all rights to the patents at issue in this suit: U.S. Patent No. 5,790,798 (“the ‘798 patent”); U.S. Patent No. 7,203,285 (“the ‘285 patent”); U.S. Patent No. 7,376,735 (“the ‘735 patent”); U.S. Patent No. 7,574,000 (“the ‘000 patent”); U.S. Patent No. 7,774,854 (“the ‘854 patent”); U.S. Patent No. 7,852,994 (“the ‘994 patent”); U.S. Patent No. 7,903,568 (“the ‘568 patent”); U.S. Patent No. 8,204,056 (“the ‘056 patent”); U.S. Patent No. 8,285,833 (“the ‘833 patent”); U.S. Patent No. RE41,534 (“the ‘534 patent”); U.S. Patent No. RE43,324 (“the ‘324 patent”); U.S. Patent No. 8,401,155 (“the ‘155 patent”); U.S. Patent No. 8,359,434 (“the ‘434 patent”); U.S. Patent No. 8,345,828 (“the ‘828 patent”); U.S. Patent No. 8,275,944 (“the ‘944 patent”); U.S. Patent No. 8,204,053 (“the ‘053 patent”); U.S. Patent No. RE43,386 (“the ‘386 patent”); U.S. Patent No. 8,130,926 (“the ‘926 patent”); U.S. Patent No. 6,404,857 (“the ‘857 patent”) and U.S. Patent No. 6,510,220 (“the ‘220 patent”) (collectively, “the Patents-in-Suit”).
Verint believes that Interactive is, in various ways, infringing upon the Patents-In-Suit. In a letter to Interactive dated September 13, 2010, VSI invited Defendant to participate in its OIN. The OIN is a licensing program under which VSI offers to grant a worldwide license to its portfolio of patents directed, in part, to the analysis, recording, monitoring, transmission, and/or security of electronic communications. In its September 2010 letter, VSI provided Interactive with claim charts showing how Interactive’s activities fell within the claim scope of various patents within the OIN. Over the course of several months, several more letters were sent by VSI to Interactive, inviting it to participate in the OIN. No agreement was reached. The current lawsuit was subsequently filed by Verint.
(e) actively inducing one or more of the activities identified in subparagraphs (a) through (d).
In the complaint, patent attorneys for Verint assert that Interactive had actual knowledge and/or notice from a time prior to the filing of the present complaint of at least the following: the ‘798 patent; the ‘285 patent; the ‘735 patent; the ‘000 patent; the ‘854 patent; the ‘994 patent and the ‘534 patent. It is also alleged that Interactive’s acts of infringement have been carried out deliberately and willfully, without the consent of Verint, at least with respect to the ‘798 patent; ‘285 patent; the ‘735 patent; the ‘000 patent; the ‘854 patent; the ‘994 patent and the ‘534 patent, entitling Verint to treble damages under 35 U.S.C. § 284. Verint further contends that this is an exceptional case entitling Verint to an award of attorneys’ fees under 35 U.S.C. § 285.
Plaintiff Verint asks for a judgment that Defendant Interactive has been and is infringing, is contributing to the infringement of, and is actively inducing infringement of the Patents-in-Suit; preliminary and permanent injunctive relief against such infringement under 35 U.S.C. § 283; damages, including treble damages, by reasons of Defendant’s acts of purportedly deliberate and willful infringement; attorneys’ fees; and costs, including expert witness fees.
Practice Tip: Verint is no stranger to the value of intellectual property. It utilizes more than 1,000 employees and contractors in research and development throughout the world, and has obtained or filed more than 570 patents and applications worldwide. In its last fiscal last year, Verint obtained issuance or allowance of 60 patents and applications in the United States.
Verint is also no stranger to intellectual property lawsuits. In 2008, a Georgia jury found that NICE Systems Ltd. had infringed Verint’s U.S. Patent No. 6,404,857 and awarded Verint $3.3 million in damages. A week later, in a separate lawsuit, Verint was found not to have infringed NICE’s U.S. Patent No. 6,871,229. There have been at least three other patent infringement lawsuits between Verint and NICE. There were rumors in January that NICE was negotiating to acquire Verint Systems, Inc.
Washington, D.C. – The United States Supreme Court has unanimously reversed a patent decision by the Court of Appeals for the Federal Circuit and has held that patent claims that are a “law of nature” are not patent eligible under 35 U.S.C. § 101. The decision built upon the Court’s 2010 decision in Bilski v. Kappos.
Patent lawyers for Prometheus Laboratories, Inc. of San Diego, California filed a patent infringement suit against Mayo Collaborative Services, doing business as Mayo Medical Laboratories of Rochester, Minnesota, alleging that Mayo infringed patent no. 6,355,623, Method of treating IBD/Crohn’s disease and related conditions wherein drug metabolite levels in host blood cells determine subsequent dosage and patent no. 6,680,302, Methods of optimizing drug therapeutic efficacy for treatment of immune-mediated gastrointestinal disorders which have been issued by the US Patent Office.
The patents at issue involve claims over an observed correlation between certain blood tests and patient health, specifically the correlation between the level of certain drug metabolites in the patient’s blood and the patient’s symptoms of gastrointestinal disease. The Court of Appeals for the Federal Circuit had twice ruled in Prometheus’s favor. Oral arguments were held December 7, 2011 at the United States Supreme Court. The Court decision essentially held that Prometheus’s “invention” was not patentable because it was effectively a law of nature. In other words, the relationship between the dosages and the effect on patient health was a natural phenomenon and therefore, unpatentable.
We blogged a preview of this case in October. This ruling is being criticized by the patent bar as making the law less clear. In particular, Robert S. Sachs of Fenwick & West LLP is examining the decision in a series of blogs on Patently-O in which he examines “just some of the logical and legal errors in the Court’s decision.” Sachs commentary also suggests that numerous patents should now be found invalid.
Practice Tip: The Court’s decision has immediately changed protocol at the patent examination office. The US Patent Office has issued new guidelines to patent examiners which are available here.
Indianapolis, IN – Patent attorneys for Digonex Technologies, Inc. of Indianapolis, Indiana has filed a patent infringement suit in the Southern District of Indiana alleging that Qcue Inc., of Austin, Texas infringed patent numbers of the 8,095,424 and 8,112,303, which have been issued by the US Patent Office.
The plaintiff claims that the defendants sell dynamic pricing software products aimed at pricing tickets for events by a variety of names “Dynamic Pricing Dashboard,” “the Qcue Product,” and “software-based dynamic pricing solution” that infringe the patents held by Digonex. The technology is apparently marketed to sports teams and event promoters. The complaint alleges that Qcue has sold infringing products to Major League Baseball, Major League Soccer, National Basketball Association, National Hockey League and NASCAR. The complaint makes two claims of patent infringement and seeks a declaration of infringement, an injunction, damages, attorney fees and costs. The complaint also alleges that Qcue has the specific intent to induce others to infringe Digonex’s patents.
Practice Tip: The complaint alleges that Qcue has referenced the two Digonex patents in a Qcue patent application pending before the US Patent Office. This, in part, is Digonex’s “evidence” of willful infringement. Also, Patent Office’s records reveal that in prosecuting the 8,095,424 patent it submitted an Information Disclsosure Statement on September 30, 2011, after the claims had been allowed. However, the Patent Office refused to consider the IDS becuase it did not comply with Patent Office regulations. Therefore, there may be some question regarding the validity of this patent.
Washington, DC – A recent decision in the Federal Circuit Court of Appeals in a legal malpractice claim involving a patent issue may have an impact on a recently filed Indiana case alleging patent attorneys committed legal malpractice, which was filed by Purdue Research Foundation late last month.
In Byrne v. Wood, Herron & Evans LLP, the Federal Circuit Court of Appeals vacated a summary judgment in favor of the law firm Wood, Herron & Evans, and remanded to the lower court for further proceedings. The plaintiff sued the law firm for legal malpractice for failing to secure a patent that was broad enough to secure his invention of a grass and weed trimmer. The plaintiff claimed that due to the law firm’s failure, he later lost a patent infringement lawsuit against Black & Decker. The court below granted summary judgment for the law firm, based in part on its decision that Mr. Byre was not an expert witness.
The appellate court also briefly took on the question of whether the federal courts have jurisdiction to hear legal malpractice claims, typically arising out of state law, when a patent issue is intertwined. The Court, citing Davis v. Brouse McDowell, L.P.A., 596 F.3d 1355 (Fed. Cir. 2010), confirmed that it did have jurisdiction over this case. However, the court acknowledged that other courts had disagreed.
The opinion is designated “non-precedential.” This was an appeal from the Eastern District of Kentucky.
Practice Tip: The basis of the legal malpractice claims in the Purdue case are substantially different that here, however, this case confirms that in most situations involving a patent issue is appropriate for the federal courts to hear legal malpractice cases.
Indianapolis, IN – A patent infringement judgment from the Southern District of Indiana will be reviewed by the Federal Circuit Court of Appeals. In May, Chief Judge Richard L. Young of the Southern District of Indiana issued a verdict and judgment in favor of plaintiffs Alcon Research Ltd., Alcon Laboratories, Inc., both of Fort Worth, Texas and Hakko Kirin Co., Ltd. (f/k/a Kyowa Hakko Kogyo Co., Ltd.) of Tokyo, Japan, after a bench trial on the plaintiff’s patent infringement claims against Apotex, Inc., of Ontario, Canada and Apotex Corp. Weston, Florida. Alcon filed a complaint alleging Apotex infringed patent no.5,641,805, TOPICAL OPHTHALMIC FORMULATIONS FOR TREATING ALLERGIC EYE DISEASES, which has been issued by the US Patent Office.
Chief Judge Young presided over a bench trial April 26, 2010 to May 7, 2010, and final arguments were presented to the court on August 3, 2010. The Court found that plaintiffs had “proven, by a preponderance of the evidence, that the Defendants’ generic equivalent of Plaintiffs’ patented allergy topical ocular medication, Patanol®;, infringed claims 1-8 of the ‘805 patent[,]” and that the defendant failed to show, by preponderance of evidence, that the patent claims were invalid. The court also found that the defendants failed to prove, by preponderance of evidence, that the ‘805 patent is unenforceable due to inequitable conduct.
Apotex has appealed the case to the Federal Circuit Court of Appeals (docket number 2011-1455). Apotex’s brief was filed on October 3, 2011, and Alcon’s brief is due on December 23, 2011.
Practice Tip: One of the defenses raised by Apotex was to claim the patent was unenforceable due to inequitable conduct. Apotex claimed that one of the inventors of the ‘805 failed to disclose results of certain tests and other data in the patent application. Apotex claimed the inventor as well as the attorney who filed the patent application violated their duty of candor to the PTO, which is imposes pursuant federal regulations 37 C.F.R. § 1.56(c). Alcon, however, presented evidence that the tests in question were believed to be inconclusive and that the inventor simply forgot about another test. Under the totality of circumstances, the court found that a finding of deceptive intent was not warranted. The court, therefore, declined to find that the patent should not be enforceable under the theory of inequitable conduct.
In addition, the court held that Apotex could not raise an additional theory of invalidity – invalidity for lack of a written description – until after the trial. The court found that the late disclosure had prejudiced the plaintiff and therefore refused to consider the new theory.
Lafayette, IN – Attorneys for the Purdue Research Foundation (“PRF”) of West Lafayette, Indiana have file a suit against the law firm of Morrison & Foerster, LLP alleging that Morrison & Foerster filed a patent application without PRF’s authorization, specifically for patent PCT2009/060273 and misappropriated trade secrets in the course of filing this patent application.
PRF filed the original complaint in Tippecanoe County Circuit Court on October 7, seeking a permanent injunction to prevent Morrison from continuing the patent application, on which Morrison listed itself and PRF as the co-applicants. The original complaint alleges that Morrison continued to breach its fiduciary duties to PRF through continuing to prosecute the patent application. Morrison filed to have the case removed to federal court, arguing that the case involved the federal questions of the inventorship of the claimed invention under the ‘273 patent.
Practice Tip: In this case, PRF has alleged that Morrison owed it a fiduciary duty since Morrison filed the patent application and listed PRF as a co-applicant. Morrison disputes that it owed a fiduciary duty to PRF and states that any existence of a fiduciary duty would be governed by the Code of Federal Register, thus creating a federal question. In addition to this federal question, Morrison states PRF’s complaint is really an “inventorship” dispute, which is also a federal question.


Owners of real estate requiring active management may seek to acquire property requiring no active management in a like-kind exchange. However, triple net leased properties – ideal vehicles — generally cost more than $1 million. Rev. Proc. 2002-22 allows a group of small investors to acquire tenancy in common interests (TICs) in a single large replacement property and still qualify under §1031. However, management activities must be kept to a minimum, or owners of TIC interests will be deemed to comprise a de facto partnership. This would render the exchange a taxable sale since §1031 cannot accommodate the exchange of partnership interests.
Thus, co-owners may not file a partnership return or hold themselves out as being a partnership. Nor are any restrictions on alienability that might typically be found in a partnership agreement permissible. Business activities among co-owners must be limited to those customarily performed in connection with the “maintenance and repair” of rental real estate. The guidance provides the basis for a private letter ruling; it is not a substantive rule of law nor does it provide a “safe harbor”.
Until recently, the IRS had issued little guidance with respect to satisfying these requirements. After relinquishing property, the taxpayer has only 45 days to identify a replacement property. As a practical matter, the taxpayer has had to rely on tax opinions of counsel. However, Private Letter Ruling (PLR) 200513010, involving a multi-tenant net leased property with a blanket mortgage owned by 35 co-owners, shed light on the issue.
PLR 200513010 states that (i) the IRS will not view the multi-tenant aspect of the building as creating a partnership; (ii) a blanket mortgage will not violate Rev. Proc. 2002-22; (iii) the Manager’s discretion to lease without obtaining the consent of the co-owners will not cause the TICs to be ineligible replacement property; and (iv) a sponsor may himself own a TIC interest for up to 6 months without causing his sale activities to be attributed to the other co-owners.
Another recent ruling, Rev. Rul. 2004-86, expanded the scope of like-kind replacement property to interests, represented by certificates, in a Delaware Statutory Trust (DST) owning real estate. The ruling is based on the fact that since the DST is a grantor trust, the certificate holders are deemed to own that portion of the real estate attributable to their certificates. Accordingly, §1031(a)(2)(E), which excludes “certificates of trust” from exchange treatment, is inapplicable.
In the facts of the Ruling, A purchases Blackacre and enters into a 10-year net lease with tenant. A then contributes Blackacre to a newly formed DST, which assumes A’s obligations under the lease. B and C, who seek like-kind exchange treatment, then exchange Greenacre and Whiteacre for all of A’s interest in the DST through a qualified intermediary. Whiteacre and Greenacre are of like-kind to Blackacre.
A DST is an unincorporated association recognized as an entity separate from its owners. Beneficial owners of a DST are entitled to the same limitation on personal liability that is extended to stockholders of a Delaware corporation. The DST agreement provides that interests in the DST are freely transferable, but are not publicly traded.
The trustee’s activities are limited to the collection and distribution of income. The trustee may not exchange real estate or purchase assets (other than short-term investments), and is required to distribute all available cash (less reserves) quarterly to each beneficial owner in proportion to his respective interest in the DST.
The Ruling notes that since the trustee’s activities and the trust’s investments are circumscribed, the DST is not a business trust created to carry on a profit, and is not subject to reclassification under Regs. § 301.7701-4(c)(1). Accordingly, the DST is entitled to be classified as a trust for federal income tax purposes. Since it is a trust, it is subject to the grantor trust rules.
Under §677(a), the grantor is treated as owner of any portion of a trust whose income is or may be distributed or held for future distribution to the grantor or the grantor’s spouse. Regs. § 1.671-2(e)(1) provides that a person who is considered as the owner of an undivided fractional interest (UFI) of a trust is considered to own trust assets attributable to that UFI for income tax purposes. Therefore, each certificate holder is considered to own an undivided fractional interest in the DST and each is considered to own the trust assets attributable to that UFI. Here, the trust assets consist of Blackacre.
Since each certificate holder is considered to own an undivided fractional interest in Blackacre for federal income tax purposes, the Ruling concludes that the exchange of real property for an interest in a DST through a qualified intermediary constitutes the exchange of real property for Blackacre rather than the exchange of real property for a mere certificate of trust. Accordingly, the exchange will qualify under § 1031.


PURPOSE: This Policy Statement announces a change in the policy of the Department with regard to the imposition of sales and use taxes on audio and video productions.
BACKGROUND: In the past, the gross receipts from the sale of audio and video productions have been taxed as the sale of tangible personal property when the master copy was sold by the production house to its customer, without deduction for the cost of fabrication labor, the services purchased or the tangible personal property purchased for such production.
DEFINITION: The term "master copy," for purposes of this policy statement means the single, original physical representation of an audio or video production in its finished form, whether recorded on tape, film or disk, as opposed to a duplicate copy of such representation. Included in the term are what are known in the industry as "duplication masters" and "duplication negatives."
DISCUSSION: The Sales and Use Taxes Act Conn. Gen. Stat. §12-406 et. seq., imposes tax on retail sales of tangible personal property and certain enumerated services. Sales of intangible personal property are not subject to sales and use taxes.
Certain types of personal property represent the intellectual work product of a creator, such as an author, artist or composer. The sale of intellectual property often has both tangible and intangible components. For example, the sale of a manuscript, which represents an author's intellectual work product, to a publisher is essentially the sale of an intangible, of which the tangible component is an inconsequential element. Once a manuscript is printed in book form, however, the sale of the printed books becomes taxable as the sale of tangible personal property. Similarly, the creation of a master copy of an audio or video production is the physical representation of the intellectual work product of its creator, and as such its sale will be treated as the sale of intangible property. However, it should be noted that it is possible, in some circumstances, that the sale of a master copy of an audio or video production may be treated as the sale of tangible personal property. One example is the sale of a master copy to a collector, where the consideration is based upon the value of the tangible component of the property instead of its intangible component.
In Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 416 A.2d 457 (1979), the court acknowledged that "a copyright may be an incorporeal right to publish and does exist detached from the personal property out of which it arises [citations omitted]." 176 Conn. at 608. There, the object of the transaction was to acquire possession of a copy of a film in order to exhibit it to an audience. The court differentiated between the imposition of tax on the sales price of the film as tangible personal property and the imposition of tax on the full production cost of making the movie, and held that the tax was not to be measured on the basis of the production costs, because the taxpayer's "objective was to acquire possession of the film in its finished state in order to reproduce it for profit rather than to acquire the services performed in producing the film." 176 Conn. at 610.
The transfer of a copy of an audio or video production (other than the master copy), whether by sale, lease or by the grant of a limited license to use the production (as in Columbia Pictures, supra), is taxable as the sale of tangible personal property. On the other hand, in the usual case when the master copy is sold along with the additional incidents of ownership thereto, such as the rights to reproduce and market the audio or video production, the true object of the transaction is the transfer of the incorporeal incidents of which the tangible medium is an inconsequential element.
the degree of disparity between the price to the purchaser for the finished audio or video production and the cost of the film or tape on which it is recorded.
whether the right to produce and sell copies of the production is transferred.
whether the right to change the underlying work is transferred.
whether the right to license the use of the work to others is transferred.
the existence of artistic or copyrightable elements (as determined under the Copyright Act of 1976, 17 U.S.C. §101 et seq., as amended), whether designated as royalties or otherwise.
whether the right to transfer the copyright itself to others is transferred.
The more of these criteria that are present, the greater is the likelihood that the true object of the transaction is the sale of intangible property.
Note that these rules do not apply to audio or video productions produced and sold for private noncommercial use, such as videotapes of weddings or graduations to be used as family mementos or accident reconstruction videotapes to be used for legal analysis. Such productions are subject to tax as the sale of tangible personal property.
PURCHASES BY AUDIO OR VIDEO PRODUCTION HOUSES: A person who performs audio or video production is the consumer of tangible personal property and taxable services used or consumed during the audio or video production process, and sales and use taxes apply to sales to and rentals by such person. The exemptions for manufacturing provided in Conn. Gen. Stat. §§12-412(18) and 12-412(34) do not apply to audio or video productions because they do not qualify under the definitions provided in the regulations thereunder. In addition, the exclusions provided in Conn. Gen. Stat. §§12-410(5) and 12-411(14) for the resale of taxable services do not apply to audio or video productions, because what is being sold is intangible personal property, not a service described in Conn. Gen. Stat. §12-407(2)(I).
The sale or lease of equipment used in producing and broadcasting programs is no longer exempt under Conn. Gen. Stat. §12-412(44).* Thus, charges for equipment are taxable, whether the equipment is used by a production company to produce audio or video tapes or is rented to its customers for their use. See Conn. Agencies Regs. §12-426-25(d) for a description of the distinction between the lease or rental of tangible personal property with an operator and the provision of services.
*Webmaster Note: Conn. Gen. Stat. §12-412(44) was amended in 1997 to restore and expand the exemptions for certain motion picture, video, television and radio production and broadcast equipment. See Conn. Gen. Stat. §12-412(44) for the complete text of the exemption.
Charges for the provision of studio, editing room and other post-production facilities, including the equipment therein, are not taxable. Such charges are deemed to be for the rental of real property instead of the rental of tangible personal property, and thus are not subject to sales and use taxes.
EFFECT ON OTHER DOCUMENTS: Ruling No. 89-49 and Ruling No. 89-272 are superseded. Ruling No. 89-111 is modified and superseded.
EFFECTIVE DATE: Effective for sales occurring on and after November 1, 1992.


text:
Custodial statements made by a juvenile, then age twelve years and eleven months, to members of a city fire department and the State police were improperly suppressed from evidence, where the interrogating officials reasonably relied on the presence of the juvenile's mother as an adult interested in his welfare [809-810]; where the parent and child were given an actual opportunity to discuss the juvenile's rights on both occasions on which the juvenile was questioned and between them chose the best course to follow [811-813]; and where, under a totality of the circumstances analysis, there was nothing to show that the juvenile's statements were involuntary [813-814].
COMPLAINT received and sworn to in the Lawrence Division of the District Court Department on December 21, 1989.
After review by the Appeals Court, the Supreme Judicial Court granted a request for direct appellate review.
Robert F. Kelley for the juvenile.
made oral admissions and signed two statements, in which he admitted that he had set fire to a couch located on the porch of his family's second-floor apartment on the evening of December 17, 1989. The fire spread throughout the three-story wooden dwelling. A Lawrence fire fighter was severely injured while fighting the fire and died of his injuries on December 20, 1989.
The juvenile moved to suppress his admissions and statements. After an evidentiary hearing, a District Court judge, sitting in juvenile session, allowed the motion. The Commonwealth was permitted to appeal, see Mass. R. Crim. P. 15 (a), 378 Mass. 882 , 882-883 (1979), and the Appeals Court affirmed the order allowing suppression. 32 Mass. App. Ct. 720 (1992). We granted the Commonwealth's application for further appellate review and now reverse the order allowing the motion to suppress.
The facts are set forth in the opinion of the Appeals Court and need not be fully repeated here. [Note 2] 32 Mass. App. Ct. at 722-725. We summarize only what is relevant to a discussion of the issues. As indicated, the juvenile was interviewed by investigating officials twice, on December 18 and 20, 1989.
The December 18 interview was held at the fire station. The juvenile was accompanied by his mother, Mrs. Smith (the juvenile's father, a taxicab driver, was unavailable). The inquiry on this day was conducted by Captain Kevin Ord of the Lawrence fire department, a second fire fighter, and State police officer Neal Dwyer. After ascertaining that the juvenile was not being truthful about how the fire started, Officer Dwyer gave the juvenile complete Miranda warnings by reading them from a standard police-issued card. Officer Dwyer asked the juvenile and Mrs. Smith whether they understood each particular warning after he read that warning from the card. [Note 3] Neither Mrs. Smith nor the juvenile asked any questions; both indicated that they understood their rights. Mrs. Smith did not ask for an attorney. Officer Dwyer then read the waiver provisions on the other side of the card, asked the juvenile and Mrs. Smith whether they understood the provisions, and informed them in "straight talk" that, if the juvenile chose to waive his rights and discuss the incident, the interview could be terminated at any point. The juvenile indicated his willingness to waive his rights and remain and speak with the investigating officials. Mrs. Smith signed the card containing the Miranda warnings and waiver. All three of the officials then left the room for between five and fifteen minutes, allowing Mrs. Smith and the juvenile to "talk over whatever they wanted." They advised the juvenile to tell his mother the truth and to tell them the truth when they returned. When the interview resumed, Mrs. Smith repeatedly encouraged the juvenile to tell the truth about the fire.
became angry and ran out of the room. The investigating officials did not follow him. Officer Dwyer assumed the interview was over and went to another room and began interviewing other witnesses. Captain Ord also left and did not return. On her own initiative, the juvenile's mother brought him back, and the interview resumed. The juvenile eventually initialed a statement in which he admitted to having set the fire unintentionally.
On December 20, 1989, the juvenile returned to the fire station. His mother met him there and was present while he was interviewed by State police officers John Garvin and Paul Zipper. Officer Garvin read the juvenile and his mother Miranda warnings and the waiver provisions from a printed card. Officer Garvin informed them that the juvenile did not have to make any statement, and he inquired whether the juvenile and Mrs. Smith understood the warnings. Both responded affirmatively. Officer Garvin then asked whether the juvenile wished to waive his rights and speak with the officers. The juvenile and Mrs. Smith responded affirmatively. Both the juvenile and Mrs. Smith signed the waiver provision on the Miranda card. The officers then left the juvenile and his mother alone together for somewhere between five and fifteen minutes, instructing them to discuss the juvenile's Miranda rights. The juvenile and his mother were not conversing when the officers reentered the room, and it is not known what, if anything, had been discussed by them during their time alone. Before reentering the room, Officer Garvin asked, "Would you like to talk to us now? I would like to get a statement from you regarding what happened with the fire." The juvenile answered "yes," and Mrs. Smith stated that she wanted the juvenile to tell the truth.
truth. At the end of the interview, the juvenile and his mother reviewed for accuracy, and initialed, each page of an inculpatory statement. When the interview was concluded, Mrs. Smith did not want the juvenile to return home with her. At her suggestion, a social worker who had previously counseled the juvenile was brought to the fire station and arranged for an accommodation for the juvenile in a juvenile home.
The judge concluded that the juvenile's motion to suppress should be allowed because the Commonwealth had not shown that Mrs. Smith satisfied our "interested adult" rule and that an actual consultation had taken place between the juvenile and his mother prior to the interviews. As an alternative basis for allowing suppression, the judge concluded that the "totality of the circumstances" indicated that the juvenile's statements were involuntary. In reaching the conclusion about involuntariness, the judge relied on the juvenile's age and lack of familiarity with police practice; the height (over six feet), and bearing (including their concealed handguns) of the interviewing officers; their urgings that the juvenile tell the truth; the fact that the juvenile and his mother were furnished Miranda warnings only twice; and the additional fact that the officers did not remind the juvenile that he and his mother were free to leave.
Commonwealth v. Guyton, 405 Mass. 497 (1989); Commonwealth v. A Juvenile, 389 Mass. 128 (1983); Commonwealth v. Day, 387 Mass. 915 , 921 (1983). When the juvenile is under the age of fourteen, as was the juvenile in this case, those procedures require that the Commonwealth "show that a parent or an interested adult was present, understood the [Miranda] warnings, and had the opportunity to explain his rights to the juvenile so that the juvenile understands the significance of waiver of these rights." Commonwealth v. A Juvenile, supra at 134. Commonwealth v. Berry, supra at 35 n.2.
The judge concluded that Mrs. Smith was not an interested adult because she had not actually engaged in "`counseling' [the juvenile] vis a vis the exercise of his privilege [against self-incrimination]." The judge also considered Mrs. Smith not disinterested because she repeatedly urged her son to tell the truth; she brought him back for further interrogation when he angrily left the room during the December 18 interview; and she became upset at times over his behavior and responses. The judge also relied on facts that, at the close of the second interview, Mrs. Smith did not want her son to return home with her, and she did not attend care and protection proceedings concerning her son instituted in June, 1990.
Interested adult. In deciding whether an adult advising a juvenile during a custodial interrogation is an interested adult, the facts must be viewed from the perspective of the officials conducting the interview. Commonwealth v. Berry, supra at 37. If, at the time of the interrogation (as assessed by objective standards), it should have been reasonably apparent to the officials questioning a juvenile that the adult who was present on his or her behalf lacked capacity to appreciate the juvenile's situation and to give advice, or was actually antagonistic toward the juvenile, a finding would be warranted that the juvenile has not been assisted by an interested adult and did not have the opportunity for consultation contemplated by our rule. Id. at 36-37.
The judge did not find that Mrs. Smith lacked capacity to appreciate the situation facing her son or to give him appropriate advice. There is no objective basis in the record to support a finding that interviewing officials could have concluded that Mrs. Smith was antagonistic toward her son. She appeared concerned about her son, not angry with him, attended both interviews, and was attentive to the administration of Miranda warnings and provisions about waiving rights. The juvenile appears to have considered his relationship with his mother intact. Cf. Commonwealth v. Smith, 472 Pa. 492 (1977) (father who refused to accompany juvenile suspect to police station for interrogation not an interested adult). Whatever distress was felt by Mrs. Smith did not affect her comprehension of events or her willingness to participate in proceedings involving her son. See Commonwealth v. Berry, supra at 35-36. The interrogating officials would not be expected to know of the psychological atmosphere of the juvenile's home or of any undisclosed problems in his relationship with his mother. They had before them objective facts indicating that Mrs. Smith was a parent who comprehended the events that had occurred and were occurring and who could assist her son in the choices he had to make. [Note 4] We reject the notion that a parent who fails to tell a child not to speak to interviewing officials, who advises the child to tell the truth, or who fails to seek legal assistance immediately is a disinterested parent. Our interested adult rule, which we conclude was satisfied in this case, is not violated because a parent fails to provide what, in hindsight and from a legal perspective, might have been optimum advice.
Actual consultation. In Commonwealth v. A Juvenile, 389 Mass. 128 , 134 (1983), this court "conclude[d] that, for the Commonwealth successfully to demonstrate a knowing and intelligent waiver by a juvenile [under the age of fourteen] . . . it should show that a parent or an interested adult was present, understood the warnings, and had the opportunity to explain his rights to the juvenile so that the juvenile understands the significance of waiver of these rights." The juvenile urges us to read this passage as requiring the Commonwealth to prove that the juvenile, and the adult assisting him, made full use of the opportunity provided to them actually to discuss the juvenile's rights and the possible consequences of a waiver. The judge accepted the argument. We reject it because such an interpretation would impose a virtually impossible burden of proof on the Commonwealth without appreciably adding to the protection afforded to juveniles.
instructed to discuss the juvenile's rights. It is not reasonable to infer from the fact that the two were silent when the officers reentered the room that they had not spoken to each other while they were alone. Nor do we think that Mrs. Smith's failure to ask the officers questions about the juvenile's rights is any indication that she failed to understand the content of the Miranda warnings which had been read to her on two occasions.
We turn to the judge's alternate basis for suppression, namely, that, under Federal constitutional law, the totality of the circumstances indicated that the juvenile's statements were involuntary. That conclusion, it will be recalled, rested on the juvenile's age and inexperience with police procedure, the height and bearing of the officers, their comments, and the context of the Miranda warnings.
significance (and neither is the fact that they carried concealed weapons, which, obviously, were not seen by the juvenile or Mrs. Smith). While it is appropriate to consider the juvenile's youth and inexperience with police procedures, his age and lack of encounter with the police alone would not warrant suppression. Were it otherwise, investigators would not be able to question a thirteen year old boy whom they reasonably suspected of involvement in a serious crime. Miranda warnings were scrupulously furnished, understood, and waived. Officer Dwyer, the officer who gave the juvenile his Miranda warnings during the first interview, indicated that he had advised both the juvenile and his mother that they were free to terminate the interview at any time. Because the interviews occurred in a custodial setting, there was no requirement that the juvenile be told that he was free to leave. Finally, we note that neither Mrs. Smith nor the juvenile testified at the hearing so that no evidence was provided by them upon which a determination of involuntariness could be based. We conclude, therefore, that the juvenile's statements should not have been suppressed as involuntary under a totality of the circumstances analysis.
[Note 1] A fictitious name is used in this opinion for the juvenile and his family.
[Note 2] The Appeals Court opinion states that "[t]he subsidiary facts . . . are contained in the judge's findings and in the record of the proceedings before him . . . [and] are largely undisputed." 32 Mass. App. Ct. at 721. The judge made a few, brief findings of fact in the course of his discussion of the legal issues, but he did not make comprehensive subsidiary findings of fact as we usually see them. The facts stated by the Appeals Court are principally drawn from the evidence at the hearing which was furnished by the Commonwealth's witnesses, a Lawrence fire fighter and three State police officers. (The juvenile presented no witnesses at the hearing). The judge did not express any disbelief of the Commonwealth's evidence, nor did he reject any of it. Rather, he appears to have accepted as accurate the bulk of the evidence, and he based suppression, as we shall discuss subsequently, on what he thought the controlling law required in light of the evidence. This approach leaves the case open to our independent review. Commonwealth v. Dunn, 407 Mass. 798 , 804-805 (1990). Consequently, the case is not one which would benefit from a remand for the making of findings of fact because the relevant facts are as the Appeals Court indicated "largely undisputed." See Commonwealth v. A Juvenile, 402 Mass. 275 , 276 n.1 (1988); Commonwealth v. Carrington, 20 Mass. App. Ct. 525 , 526 (1985).
[Note 3] At the point of administration of Miranda warnings, after the juvenile had made statements which indicated that he had been untruthful about his role in the fire, the juvenile was in custody. He was in custody at the December 20 interview as well. The reasons for this conclusion, which was not the subject of an express finding by the judge, are set forth in the opinion of the Appeals Court with which we agree. See 32 Mass. App. Ct. at 722.
[Note 4] The interviewing officials could not have anticipated that Mrs. Smith would not want the juvenile to come home with her, when the December 20 interview was completed. Interviewing officials will make their assessment of the relationship between parent and juvenile at the outset, and during the course of, an interview. Evidence of events occurring at the close of an interview logically cannot be used to support a finding that the officials should have known a parent could not act as an interested adult. Certainly, officials interviewing the juvenile in Mrs. Smith's company in December, 1989, would not have taken into account care and protection proceedings initiated in June, 1990.
[Note 5] When the officers left the juvenile and his mother alone during the first interview, after reading the Miranda warnings to both, they did not instruct Mrs. Smith to discuss her son's rights with him. We have never stated that investigating officials must expressly inform a juvenile and his or her parent that they should use their opportunity to confer for a discussion of the juvenile's rights, and we do not do so now. See Commonwealth v. Ward, 412 Mass. 395 , 397 (1992). In this case, the juvenile and his mother were left alone immediately after the warnings were read and told to "talk over whatever they wanted." The investigating officials also indicated that they wanted to know the truth. We think this was a sufficient indication to the juvenile's mother that she and her son should use the private consultation to discuss the best course to follow, in light of the information they had just received. The better practice, however, with any juvenile is for the investigating officials explicitly to inform the juvenile's parent, or other interested adult, that an opportunity is being furnished for the two to confer about the juvenile's rights.
[Note 6] Investigating officials can only provide a juvenile and an adult the opportunity to confer about the juvenile's rights. They cannot force the adult to speak with the juvenile, nor can they dictate the content of whatever discussion takes place. In addition, we cannot hold a parent or an interested adult to the standards to which we would hold lawyers in explaining a defendant's rights and the possible consequences of waiver. Thus, we do not accept the Appeals Court's suggestion that the Commonwealth must prove that the "consultation conveyed the vital information that [the juvenile] needed to know." 32 Mass. App. Ct. at 729.
[Note 7] The Appeals Court upheld suppression of the statements made during the December 18 interview on the grounds that the juvenile had not himself signed the waiver provisions of the Miranda card and because "there is no suggestion in the record or in the Commonwealth's brief that [the juvenile], by any other act, waived his rights." 32 Mass. App. Ct. at 726.
A written notation of a juvenile's waiver of his rights is not an essential prerequisite to a valid waiver. Commonwealth v. Cain, 361 Mass. 224 , 228 n.2 (1972). Because of the burden imposed on the prosecution in proving a knowing and intelligent waiver of rights, a written notation to this effect by the juvenile may be more persuasive evidence of waiver than is a police officer's assertion that the rights were waived orally. K.B. Smith, Criminal Practice & Procedure Sections 363-364 (1983). Here, the juvenile orally indicated that he wished to waive his rights. This is sufficient.

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Scott J. Kiepen practices in the firm’s Long-Term Care Practice Group, HIPAA Practice Group and Litigation Department and specializes in the areas of health care civil and regulatory law, long-term care, senior housing and related ancillary services. He is also a member of the firm's Fraud & Abuse Practice Group. Mr. Kiepen regularly counsels long-term care, senior housing and continuing care retirement providers in all aspects of their regulatory, business, and legal affairs, including matters concerning Changes of Ownership (CHOWs) and licensing and certification approvals, Medi-Cal and Medicare reimbursement, billing, sales and leases of facilities, survey management, transfer/discharge issues and appeals, abuse reporting and administrative appeals, fraud and abuse issues, medical staff, pharmacy issues, and other general operational issues. Additionally, he has assisted many long-term care providers in the development and implementation of compliance programs.
Mr. Kiepen’s litigation experience includes a wide variety of matters in both federal and state courts, and administrative hearings against government agencies. He has represented providers in business and contract disputes, medical malpractice and elder abuse cases, transfer trauma cases, Medicare and Medicaid reimbursement disputes, licensing and certification accusations, unfair competition (“UCL”) cases, Consumer Legal Remedies Act cases, and Medicare and Medicaid decertification matters.
Mr. Kiepen is an associate member of the California Association of Health Facilities, where he has served on the association’s reimbursement, legal and products and services subcommittees. Mr. Kiepen is a frequent state-wide speaker regarding long-term care issues, and serves his local community as a member of the Advisory Counsel on Aging to the Contra Costa County Board of Supervisors.
Mr. Kiepen received his B.A. degree from San Jose State University in 1988 and his J.D. from Golden Gate University School of Law. He was admitted to the Pennsylvania Bar and the California Bar in 1994. As a former principal in the Northern California-based health care firm of Rapp, Kiepen & Harman, Mr. Kiepen merged his practice with Hooper, Lundy & Bookman in April 2002.
Lauderdale Associates v. Department of Health Services, 67 Cal. App. 4th 117 (1998).
Foundation Aiding Elderly v. Superior Court, Court of Appeal, First District, Division 4, California. April 1, 2005 A109442 (2005 WL 752739).
Life Care Centers of America v. CalOptima, Court of Appeals, Fourth District, Division 3, California. October 31, 2005 133 Cal.App.4th 1169 35 Cal.Rptr.3d 387.
Alvarado v. Selma Convalescent Hosp., Court of Appeal, Seond District, Division 3, California. August 1, 2007 153 Cal.App.4th 1292 64 Cal.Rptr.3d 250.
Bates v. Granada Healthcare and Rehabilitation Center, LLC, Court of Appeal, First District, Division 3, California. September 15, 2008 A120485 (2008 WL 4195954).
Bush v. Horizon West, Court of Appeal, Third District, California. April 9, 2012 205 Cal.App.4th 924 140 Cal.Rptr.3d 258.
Shuts v. Covenant Holdco, LLC, Court of Appeal, First District, Division 4, California. August 15, 2012 208 Cal.App.4th 609 145 Cal.Rptr.3d 709.
Grancare, LLC v. Horton, Court of Appeal, Second District, Division 1, California. May 31, 2013 B241363 (2013 WL 2382609).
Nevarrez v. San Marino Skilled Nursing and Wellness Centre, Court of Appeal, Second District, Division 4, California. November 4, 2013 221 Cal.App.4th 102 163 Cal.Rptr.3d 874.
Valley View Health Care, Inc. v. Chapman, United States District Court, E.D. California. January 16, 2014 992 F.Supp.2d 1016 2014 WL 197778.
CAHF Annual Convention and Expo.

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The term “personal data” refers to the definition of Article 4 (1) of Regulation (EU) 2016/679 (hereinafter referred to as the General Data Protection Regulation or GDPR for short) to mean all data that is personal to you are available. This includes, for example, name, address, e-mail address, user behavior. With regard to the other terminology, in particular the terms “processing”, “controller”, “processor” and “consent”, we refer to the legal data protection definitions of Art. 4 GDPR.
In principle, we process personal data only insofar as this is necessary for the provision of a functional website and the content and services offered by us. The processing of personal data takes place regularly only if you give us consent in the sense of Art. 6 para. 1 lit. a) have issued GDPR or the processing by statutory provisions, in particular by one of the in Article 6 para. 1 lit. b) to lit. f) GDPR mentioned legal bases, is permitted.
Your personal data will be deleted or blocked as soon as the purpose of the storage is removed. In addition, storage may be provided if required by national or European regulations to which we are subject. Blocking or deletion of the data in this case takes place when the storage period prescribed in the respective regulations has expired. The latter does not apply if further storage of the data is required for a contract or fulfillment of the contract.
Further details of the controller – responsible body can be found in our imprint.
The aforementioned data are also stored in so-called. Log files on our servers. A storage of this data together with other personal data of you does not take place.The collection and temporary storage of the IP address is necessary to enable the delivery of our website to your device. For this, your IP address must be saved for the duration of your visit to our website. The storage of the above-mentioned data in log files serves to ensure the functionality and to optimize our website and to ensure the security of our information technology systems. An evaluation of this data for marketing purposes does not take place.
For the above purposes, we have a legitimate interest in data processing. The legal basis for the collection and temporary storage of the aforementioned data is Article 6 (1) sentence 1 lit. f) GDPR.The above data for the provision of our website will be deleted when the session ends. The collection of the above data for the provision of our website and the storage of this data in log files is essential for the operation of our website. There is no contradiction.
If you contact us by e-mail, the personal data you provide us with your e-mail will be stored. We also have a contact form on our website that you can use to contact us. The data entered by you into the input mask will be transmitted to us and saved.
The processing of the above personal data is solely for processing your requests. The processing of other personal data resulting from the use of the contact form on our website is intended to prevent misuse and to ensure the security of our information technology systems.
The data will be deleted, subject to legal retention periods, as soon as we have finalized your request. If you contact us by e-mail, you may object to the storage of your personal data at any time. We point out that in this case your request can not be processed. The revocation or the contradiction can be explained by sending an e-mail to our e-mail address stated in the imprint.
The data will be deleted as soon as it is no longer necessary to achieve the purpose of its collection. In the event that employment, apprenticeship, internship or other employment relationship occurs after the application process, the data will initially be stored and transferred to the personnel file. Otherwise, the application process ends with the receipt of a rejection. The data will be deleted in this case after six months. Deletion does not take place if further processing and storage of your personal data is required in individual cases in order to assert, exercise or defend legal claims. In this case, we have a legitimate interest in the further processing and storage of your personal data. The legal basis is Art. 6 para. 1 sentence 1 lit. f) GDPR. A deletion does not take place even if we are obliged by law to further store your personal data.
You can revoke your consent at any time. You can object to the processing of your personal data at any time. In particular, you have the option to withdraw your application at any time. As part of the application process, you should only provide us with the personal information needed to participate in the application process and to carry it out. There is no legal or contractual obligation to provide data. We would like to point out, however, that we can not carry out the application procedure without this data and can not take your application into account. The same applies in the case of an objection directed against the processing of your data. You can change the data stored about you at any time.
We also offer you the opportunity to have your application saved in a job application pool. This gives you the opportunity that we can consider your application in addition to the concrete application request also in the context of further future application procedures. The storage of your application in the application pool requires your consent. We save your application in the application pool for two years. The legal basis of the processing is Art. 6 para. 1 sentence 1 lit. a) GDPR. The consent given to us can be revoked at any time.
We use the “Google Maps” service on our website, an online map service of Google Ireland Limited, Google Building Gordon House, Barrow St, Dublin 4, Ireland (hereafter referred to as “Google”). This allows us to show you interactive maps directly on the website, allowing you to conveniently use the map feature. By visiting our website Google receives the information that you have accessed the corresponding subpage of our website. Your IP address will be transmitted. This is done regardless of whether Google provides a user account that you are logged in to, or if there is no user account. When you’re logged in to Google, your data will be assigned directly to your account. If you do not wish to be associated with your profile on Google, you must first log out. Google stores your data as usage profiles and uses them for purposes of advertising, market research and / or tailor-made website design. Such an evaluation is carried out in particular (even for non-logged in users) to provide needs-based advertising and to inform other users about your activities on our website.
We use Google Maps to provide you with interactive maps of Google Maps, allowing you to better use our website. This is also our legitimate interest in the processing of the above data by the third party. The legal basis is Art. 6 para. 1 sentence 1 lit. f) GDPR.
You have the right to object to the creation of these user profiles, but you must contact Google for this.
On the websites of our website we include videos from “Youtube”, a social media platform of Google Ireland Limited, Google Building Gordon House, Barrow St, Dublin 4, Ireland (hereafter referred to as “Google”). When accessing a website that includes a video from Youtube, data is transmitted to and stored by Google on servers in the United States. If you have a Google user account and are registered, Google will be able to associate the visit with your user account. Google stores these data as usage profiles and uses them for the purposes of advertising, market research and / or needs-based design of its web pages. Such an evaluation is carried out in particular (also for non-logged-in users) for the presentation of needs-based advertising and to inform other users of the social network about your activities on our website. You have a right to object to the formation of these user profiles. Please contact Google directly.
We integrate content from Youtube on the websites of our Internet presence in order to make this content immediately available to you, without having to retrieve the content separately on Youtube. This allows you to use functions of the social media platform Youtube already on our website. This allows us to improve our offer as well as the user experience for you and make it more interesting. This is also our legitimate interest in the processing of the above data by the third party. The legal basis is Art. 6 para. 1 sentence 1 lit. f) GDPR.
We take the protection of your personal data very seriously. We collect, store and process your data solely on the basis of Art. 6 para. 1 letter b GDPR (Lawfulness of processing) for the fulfillment of contractual purposes and pre-contractual purposes.
A transfer of personal data for the purpose of advertising and / or marketing to third parties is excluded.
The personal data that are stored and processed by InduTech instruments GmbH were either voluntarily provided by you to InduTech instruments GmbH or made available to InduTech instruments GmbH from other sources for order processing. Of course, you always have the rights, of information, origin, limitation and opposition, please read the paragraph of the affected rights.
A transfer of personal data e. g. for the purpose of advertising and/or marketing to third parties is excluded.
For the purpose of fulfilling the order, there may be a need for the transfer of personal data to third parties commissioned by the company InduTech instruments GmbH, a transfer of data beyond this purpose, for e. g. for the purpose of advertising and/or marketing to third parties is excluded.
Of course, you always have the rights, of information, origin, limitation and opposition, please read the paragraph of the affected rights.
Your data will be stored after the survey at InduTech instruments GmbH until the order is fulfilled and how this is required under observance of the legal retention periods according to german tax law § 41 according to StGB of a maximum of ten years.
Storage after order fulfillment also serves for documentation purposes, optimizations of our products and internal processes, as well as services, warranty and service in order to better respond to your wishes in the future. Also, to inform you about products, product extensions, product optimizations, software updates and services from InduTech instruments GmbH that we believe may be of interest and benefit to you.
You have the right of access by the data subject (Art. 15 GDPR) at any time about the personal data informations him or her which are being processed and stored. As well as their source of origin (Art. 14 GDPR).
Should incorrect personal data be processed, you are entitled at any time to a correction, the right to rectification (Art. 16 GDPR). In addition you have the right to erasure (Art. 17 GDPR (‘right to be forgotten’)).
You have the right to restriction processing (Art. 18 GDPR) at any time regarding the processing of your personal data.
You have the right to object (Art. 21 GDPR) to the processing of your personal data at any time.
You have the right todata portability (Art. 20 GDPR) at any time, to receive your personal data in a structured, common and machine-readable format, which we determine together after your e-mail request.
If you make use of your rights mentioned above, the company InduTech instruments GmbH checks whether the legal and contractual requirements are met. If the legal as well as the contractual conditions are present, then you can demand the erasure or restriction of the processing as well as objection to the processing.

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A.M. No. RTJ-04-1826 - GREENSTAR BOCAY MANGANDINGAN v. JUDGE SANTOS B. ADIONG, ET AL.
GREENSTAR BOCAY MANGANDINGAN, Complainant, v. JUDGE SANTOS B. ADIONG, Regional Trial Court (RTC), Branch 8, Marawi City; ATTY. CAIRODING P. MARUHOM, Clerk of Court VI and MR. MASBOD M. SYBIL, Cash Clerk II, both of the RTC, Office of the Clerk of Court, Marawi City, Respondents.
In his Affidavit-Complaint1 dated April 15, 2003, complainant Greenstar Bocay Mangandingan charges respondent Judge Santos B. Adiong, presiding judge of the Regional Trial Court (RTC) of Lanao del Sur, Marawi City, Branch 8, with gross ignorance of the law or procedure; manifest unfaithfulness to a basic legal rule as well as injudicious conduct; grave abuse of authority; grave misconduct; conduct prejudicial to the administration of justice; violation of Rules 3.012 and 3.023 of the Code of Judicial Conduct; knowingly rendering an unjust interlocutory order; and bias and partiality.
Complainant was proclaimed the Punong Barangay of Basak-Bangco, Madalum, Lanao del Sur during the special election on August 13, 2002 by virtue of Commission on Elections (COMELEC) En Banc Resolution No. 03-0062.
Complainant claims that there was no valid service of summons on the defendants in accordance with Sections 6 and 7 of Rule 14 of the Rules of Court since the same was given to a certain Datu Hassan Mangondaya of Madalum, Lanao del Sur who had absolutely nothing to do with the case and was not even authorized by the court to receive summons for the defendants.
Complainant avers that it was only on March 28, 2003 when he received a copy of the summons at the Municipal Hall of Madalum, Lanao del Sur.
Complainant claims that Maruhom and Sybil conspired with Judge Adiong and Atty. Edgar Masorong, counsel for the plaintiff, to manipulate the raffle of the case. Based on the record of the raffling proceedings conducted at the Office of the Executive Clerk of Court of Marawi City on April 1, 2003, Civil Case No. 1912-03 was raffled only on said date and to Branch 10, not to Branch 8.13 Complainant also alleges that instead of immediately notifying and/or summoning the parties pursuant to Supreme Court Administrative Circular No. 20-95,14 Maruhom delivered the record of the case to Judge Adiong on March 5, 2003. After the Writ of Preliminary Injunction was issued on March 25, 2003, the record of the case was returned to the Office of the Executive Clerk of Court where it was finally raffled to Branch 10 on April 1, 2003.
Complainant avers that he filed his Answer with Special and Affirmative Defenses15 with Branch 10, on April 3, 2003, but his Most Urgent Motion to Dissolve Writ of Preliminary Injunction,16 which he scheduled for hearing on April 29, 2003, was not heard on that date because it was not included in the court calendar of Branch 10. Upon inquiry, it was discovered that Sybil had taken the records of the case from Branch 10 without the knowledge and authority of the branch clerk of court and the presiding judge, and replaced the case with Civil Case No. 1916-03 entitled "Amer D. Bantuas, Jr. v. Felix Taranao, Jr." Complainant also alleges that Sybil manipulated which branch of the RTC the case would be assigned for hearing, in conspiracy with Maruhom, Judge Adiong and Atty. Masorong.
The complaint and supplemental complaint having been filed directly with the Office of the Court Administrator (OCA), then Court Administrator17 Presbitero J. Velasco, Jr. directed respondents, Judge Adiong, Atty. Maruhom and Mr. Sybil, to submit their respective comments.
In his Comment18 dated June 25, 2003, Judge Adiong claims that there was valid service of summons or if there was any defect the same had been cured when the defendant filed his answer. According to Judge Adiong, the summons were served through Datu Hassan Mangondaya, the former Municipal Vice Mayor of Madalum, Lanao del Sur. As such, he is certainly a man of suitable age and discretion as well as a prominent citizen who literally knows everybody in the community. Judge Adiong claims that he relied upon the belief that the court sheriff had regularly done his job.
Judge Adiong argues that the issuance of the TRO on March 5, 2003 without prior notice and hearing was valid pursuant to Supreme Court Administrative Circular No. 20-95, which authorizes the ex parte issuance of a TRO by an executive judge in matters of extreme urgency, in order to prevent grave injustice and irreparable injury. He claims that such circumstance was clearly obtaining at the time he issued the TRO.
He also claims that when he extended the TRO to its maximum duration of twenty (20) days from its issuance, no violation of Section 5 of Rule 58 of the Rules of Court or B.P. Blg. 224was committed. He adds that if indeed notice of the preliminary hearing was not received by complainant before March 11, 2003, that matter should have been brought to the attention of the court by the defendants in Civil Case No. 1912-03 when the latter's counsel appeared at the Office of the Clerk of Court on March 20, 2003 to complain about the improper service of summons. But they did not; hence, the same is considered waived.
Judge Adiong maintains that the grant and issuance of the writ of preliminary injunction were perfectly valid. Complainant's claim that he was not properly served a summons is belied by the appearance of his counsel at the Office of the Clerk of Court in the morning of March 20, 2003, shortly before the hearing of the application for issuance of a writ of preliminary injunction was called.
Sybil in his Comment19 dated August 5, 2003 admits that sometime in April 2003, plaintiff Sangcopan came to see him and asked if it was possible to have his complaint heard by RTC Branch 8, since the case was already started there. Sangcopan was concerned he might not have an impartial trial at RTC Branch 10 because the presiding judge therein was involved in the political career of his son, Yusoph Pangadapun, Jr., the incumbent Vice Mayor of Marawi City, and especially considering that the principal defendants in the case are the members of the COMELEC.
Because the case had just been raffled and there was no other sala to which it can be re-raffled, Sybil told Sangcopan that they will have to ask RTC Branch 10 if said branch is willing to exchange Civil Case No. 1912-03 with a Branch 8 case. He also said that they will have to ask Judge Adiong's permission for the case to be reassigned to his sala.
Candidato Dayondong, a court personnel of Branch 10 in charge of civil cases, allegedly agreed subject to the conformity of the parties. Upon request, Judge Adiong also agreed to the exchange.
Shortly after the exchange, Dayondong informed Sybil that complainant's counsel had objected to the transfer prompting Sybil to immediately retrieve the complete case file from Branch 8 and return it to Branch 10.
In his Comment20 dated July 31, 2003, Clerk of Court Maruhom avers that he had no participation or knowledge of what transpired during the court proceedings from the time Civil Case No. 1912-03 was filed, much less did he conspire with the other respondents in the performance of all acts complained of. The alleged switching of cases by Sybil was done without his knowledge, consent or instruction.
Judge Adiong in his Supplemental Comment21 dated August 4, 2003 admits acquiescing to Sybil and Sangcopan's request because he was satisfied "that no malice could be entertained from the Sangcopan's request" and no prejudice can be inflicted upon the rights of any of the parties since the case would have to be totally heard on its merits. Thereafter, the urgent motion to dissolve the issued injunctive writ was set for hearing. But before that could take place, the case was returned to Branch 10 because the complainant's counsel had allegedly objected to the reassignment of the case to respondent Judge's sala.
Upon evaluation of the case, the OCA found the complaint partly meritorious. It found that the summons served through the former vice mayor of Madalum, Lanao del Sur was not the valid substituted service contemplated by law. It also found that "[t]here could be no way to avoid the impression of irregularity when the raffling procedure is circumvented. For which reason, Judge Adiong and Sybil should be held administratively liable."22 It recommended that the complaint against Maruhom be dismissed for lack of merit and that both Judge Adiong and Sybil be held liable for violation of Supreme Court rules, directives and circulars and each be fined in the amount of twenty thousand pesos (P20,000).
We agree with the findings of the OCA that respondents Judge Adiong and Sybil should be held administratively liable. However, we find the recommended penalties too light under the circumstances of this case and find it more appropriate to impose heavier penalties. We likewise find that the complaint against respondent Maruhom should not be dismissed because he is also administratively liable.
We start with the determination of the extent of liability of Judge Adiong. We find Judge Adiong's justifications for his acts unconvincing. No matter how urgent a case may be, this fact cannot justify the procedural shortcuts employed by respondent judge, i.e. dispensing with the proper service of summons,23 and the violation of Section 5 of Rule 58 of the Rules of Court.
SEC. 6. Service in person on defendant. Whenever practicable, the summons shall be served handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.
SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.
It is glaringly obvious from the service return24 of the sheriff that the proper service as provided for in the rules was not followed. No copy of the summons was handed to any of the defendants who were natural persons. Neither was a copy left at any of their residences or offices. What the sheriff did was to leave a copy of the summons at the residence of Datu Hassan Mangondaya, a total stranger to the case. The sheriff also left a copy of the summons for defendant LBP with the manager of the LBP Marawi City Branch, although the latter is not one of those enumerated in Section 1125 of Rule 14 of the Rules of Court upon whom service may be made when the defendant is a corporation. In the face of contrary evidence clearly showing that there was defective service of summons, Judge Adiong could not be justified in assuming that the sheriff regularly performed his duties.
SEC. 5. Preliminary injunction not granted without notice; exception. - No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.
However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.
Judge Adiong's violations of the Rules in issuing the TRO are patent and inexcusable.
CANON 2 A JUDGE SHOULD AVOID IMPROPRIETY AND APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES.
CANON 3 A JUDGE SHOULD PERFORM OFFICIAL DUTIES HONESTLY, AND WITH IMPARTIALITY AND DILIGENCE.
The Court notes that Judge Adiong was previously fined P20,000 for ignorance of the law in Bantuas v. Pangadapun31 and P5,000 for gross ignorance of the law in Mutilan v. Adiong.32 He was also warned in the latter case that repetition of the same or similar acts in the future will be dealt with most severely. In Gomos v. Adiong,33 Judge Adiong was again found guilty of gross ignorance of the law for issuing a writ of preliminary injunction in violation of Section 21(1)34 of B.P. Blg. 12935 and Sections 4(c)36 and 5, Rule 58 of the Rules of Court and for citing FAPE employees in contempt of court in disregard of Section 3,37 Rule 71. Accordingly, he was suspended from office without salary and other benefits for six (6) months with a warning that a repetition of the same or similar acts shall be dealt with more severely. In De la Paz v. Adiong,38 Judge Adiong was found guilty of gross ignorance of the law and abuse of authority and was suspended for a period of six (6) months without pay, with a warning that the commission of a similar act in the future will warrant his dismissal from the service.
This Court cannot countenance the complacence of Judge Adiong manifested in his gross ignorance and his deliberate misapplication or misinterpretation of the very basic procedures subject of the present case to justify his actions that favor certain litigants. Under the circumstances, and considering his propensity for disregarding elementary rules of procedure, the extreme sanction of dismissal is called for.
For his prejudicial acts in the conduct of his official tasks, we find Maruhom guilty of simple misconduct.41 The Uniform Rules on Administrative Cases in the Civil Service reveals that simple misconduct carries with it a penalty of suspension from one (1) month and one (1) day to six (6) months for the first offense. In our view, his misconduct calls for the imposition of three (3) months suspension from office.
Finally, we now consider the acts of Sybil.
Parenthetically, Judge Adiong apparently sees nothing wrong with Sybil's highly irregular act of exchanging the records of two cases in violation of the rules on raffle. This is a reflection of moral obtuseness which further renders respondent judge unfit to continue in the judicial office.
By not abiding by the rules on raffle, Sybil opened himself to the suspicion that he is biased and that he acted to favor the plaintiff. His highly improper conduct subjected the court's integrity to distrust. For this, the Court finds respondent Sybil guilty of simple misconduct.
1. Judge Santos B. Adiong GUILTY of gross ignorance of the law as well as gross misconduct constituting violation of the Code of Judicial Conduct. He is DISMISSED from the service with forfeiture of all benefits except his accrued leave credits, if any. He is further disqualified from reinstatement or appointment to any public office, including government-owned or controlled corporations.
2. Atty. Cairoding P. Maruhom GUILTY of simple misconduct. He is SUSPENDED from office for three (3) months, effective immediately.
3. Mr. Masbod M. Sybil GUILTY of simple misconduct. He is SUSPENDED from office for three (3) months, effective immediately.
Puno, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario*, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro, JJ., concur.
2 Rule 3.01. A judge shall be faithful to the law and maintain professional competence.
3 Rule 3.02. In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear of criticism.
6 Id. at 3 and 81.
9 An Act Regulating the Issuance of Restraining Orders, Amending for the Purpose, Section Five of Rule Fifty-Eight of the Rules of Court, approved on April 16, 1982.
12 Also known as the Anti-Graft and Corrupt Practices Act, approved on August 17, 1960.
14 Re: Special Rules for Temporary Restraining Orders and Preliminary Injunctions, effective October 1, 1995.
1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a complaint or any initiatory pleading filed with the trial court, such complaint or initiatory pleading shall be raffled only after notice to the adverse party and in the presence of such party or counsel.
2. The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted within twenty-four (24) hours after the records are transmitted to the branch selected by raffle. The records shall be transmitted immediately after raffle.
17 Now an Associate Justice of the Supreme Court.
23 Re: An Undated Letter with the Heading "Exposé" of a Concerned Mediaman on the Alleged Illegal Acts of Judge Julian C. Ocampo III, A.M. No. 00-10-230-MTCC, June 20, 2001, 359 SCRA 1, 15.
WHEREFORE, that the original copy of said order is hereby respectfully returned, DULY SERVED.
Marawi City, March 07, 2003.
27 The pertinent provisions of which were incorporated in Section 5 of Rule 58 of the Rules of Court.
28 Marcos-Manotoc v. Agcaoili, A.M. No. RTJ-98-1405, April 12, 2000, 330 SCRA 268, 276.
31 A.M. No. RTJ-98-1407, July 20, 1998, 292 SCRA 622, 630.
32 A.M. No. RTJ-00-1581 (Formerly OCA IPI No. 98-635-RTJ), July 2, 2002, 383 SCRA 513, 519.
33 A.M. No. RTJ-04-1863, October 22, 2004, 441 SCRA 162, 171-172.
35 Also known as "The Judiciary Reorganization Act of 1980."
(c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint or initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines.
38 A.M. No. RTJ-04-1857, July 29, 2005, 465 SCRA 34, 36.
40 Ito v. De Vera, A.M. No. P-01-1478, December 13, 2006, 511 SCRA 1, 11.
41 Aquino v. Israel, A.M. No. P-04-1800 (Formerly OCA-IPI No. 01-1243-P), March 25, 2004, 426 SCRA 266, 269. Misconduct is defined as a transgression of some established or definite rule of action; more particularly, it is an unlawful behavior by the public officer.
42 Effective September 23, 1974.
43 Re: An Undated Letter with the Heading "Exposé" of a Concerned Mediaman on the Alleged Illegal Acts of Judge Julian C. Ocampo III, supra note 23, at 16.
44 Prak v. Anacan, A.M. No. P-03-1738, July 12, 2004, 434 SCRA 110, 116.
45 Office of the Court Administrator v. Bucoy, A.M. No. P-93-953, August 25, 1994, 235 SCRA 588, 593.
46 341 Phil. 317 (1997).

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