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Thank you for your interest in Maxon and our products. The protection of your personal data is very important to us. In this document we will inform you about our data protection policies. We adhere to the legal requirements of the Data Protection Law (BDSG) from the German Telemedia Act (TMG) and other data protection regulations for the Federal Republic of Germany. In as far as a foreign entity is affected, we assure the to that extent observance of relevant and pertinent data protection regulations.
You can trust us with your personal data! Your data is encrypted using SSL (a network protocol for the secure transfer of data) when it is sent to us. Technical measures have been taken to ensure that our Websites are protected against damage, destruction and unauthorized access.
In the following we will inform you about the elicitation of personal data when our Website is used. Personal data is all data that refers to you personally, e.g., name, address, email addresses, user behavior.
Decisions regarding purpose and means of processing personal data (e.g., name, contact information or similar) is made by these persons, if necessary in jointly with others.
When our Website is used solely for informational purposes, i.e., if you do not register or transfer any information to us, we only elicit the personal data that your browser supplies to our servers. If you want to view our Website, we elicit the following data, which is required technically in order to display the Website and ensure its stability and security (legal basis are the legitimate interests in accordance with Art. 6 Abs. 1 S. 1 lit. f DS-GVO.
In consideration of the balancing of interests in accordance with Art. 6 Abs. 1 S. 1 lit. f DS-GVO, we have considered and weighed our interest in providing our Website with your interests in the processing of your data that is compliant with data protection regulations. Since the data hereinafter that is required for the provision of our services is required for technical and other reasons in order to make it available as well as to ensure the Website’s stability and security, in particular to protect it against misuse, we have come to the conclusion that this data can be processed (under warranty of securing data as the currently available technology permits) whereby your interest in the processing of your data that is compliant with data protection regulations is taken into account.
We elicit data about the operating system used, information about the browser type and version, the user’s internet service provider, I.P. address, date and time of the use, possibly the manufacturer and type of mobile device, log files, file types, downloads, access, entering and exiting of the Website.
This is done to ensure the proper operation of our Website and traceability in the event of a security breach as well as for evaluation for Website optimization and to analyze our server utilization. The data is stored on specially protected servers in Germany. Only a few specially authorized persons who are involved with the technical, commercial or editorial support of the servers have access to this data.
These log files will be deleted after 6 months. The collection of data for the provision of our Website and the saving of data in log files is essential for the operation of our Website. There is no possibility for the user of the Website to contest this.
Session cookies are a technical necessity but are not absolutely necessary to display the Website. Several functions of the Website, e.g., language settings, shopping cart, automatic form filling, login information, etc. cannot be used or cannot be used properly without these cookies. As a result, there is not possibility for the user of the Website to contest this. These cookies can be disabled using the browser’s settings. As Website operator, we have a justifiable interest in the use of this service, the legal basis for this being Art. 6 Abs. 1 lit. f) DSGVO. They will be deleted when the browser session is quit.
Cookies for range measurement collect information about how our Website is used, e.g., page calls or error messages. These cookies do not save information that can identify the user. The information collected is aggregated and therefore analyzed anonymously.
Our Website uses the web analytical service Matomo (formerly Piwik).
If you do not agree to your data being saved and evaluated during your visit you can contest this per mouse click. In this event, an opt out cookie will be placed in your browser, which will result in no information being elicited during your visit. Note: If you delete your cookies, the opt out cookie will also be deleted and will then have to be reactivated by you.
You can decide here if a web analysis cookie should be saved to your browser, which will allow the Website operator to collect and analyze various static data. If you do not want this to happen, click on the following link to save the Matomo deactivation cookie to your browser. Your current visit to our Website is being recorded by Matomo web analytics.
Click here to stop your visit from being recorded.
You will receive a newsletter/emails from us with news and current information about or products if you subscribe to this service. For a subscription, we must save your email address, your first and last name, the country in which you are and an opt in verification. We will also elicit the page on our Website on which you subscribed to the newsletter. This data is elicited for marketing purposes and want to address you personally as our customer.
The data collected for the newsletter subscription will only be processed based on your prior consent (Art. 6 Abs. 1 lit. a DSGVO). You can revoke your existing consent at any time. You can do so via email or by clicking on the unsubscribe button in the newsletter itself. The legality of the processing of data that took place prior to your revocation remains unaffected.
The data supplied for the subscription will be deleted when the subscription is terminated. If this data was supplied elsewhere and for another purpose, it will remain with us. Your data will be saved until a revocation has been submitted.
Individualized or personalized emails are sent to some customers within the framework of individual marketing campaigns. This is done for marketing purposes based on the individual’s consent. The data collected for the registration process for use of our Cinema 4D demo version, Cineware for After Effects version, Cineware for Illustrator version, Cinema 4D Educational license, Cinema 4D/BodyPaint 3D full versions will be saved and archived until revoked by you.
The email address elicited for the purpose of purchasing goods or services on our Website will be used for direct advertising for our own products and/or services. This is done for marketing purposes based on your consent. If you do not want to receive direct advertising you can revoke the use of your email address at any time. You can do so via email or by using the unsubscribe link in the newsletter itself. After your objection, the data will be completely deleted.
If you have given us your consent that we pass your data to one of our partners, please be advised that your data will also be saved by this partner and a deletion of this data must be requested from the respective partner.
For the following processes, you can register with us and/or open a customer account: suggestions, demo downloads, Cinema 4D demo version activation, Cineware for Illustrator registration, Cineware for After Effects registration, ePortfoliio activation, Cinema 4D Educational license registration, Maxon shop order form, newsletter subscription.
Data supplied via contact form will be saved together with your contact information in order to process your inquiry, to be able to respond to follow-up inquiries or for contractual performance purposes.
Personal data will only be passed to third parties in as far as required for contract processing. Third parties can, for example, be a payment service provider or a logistics company. A farther-reaching transfer of data will not take place or will only take place if expressly consented to by you. Basis for the processing of data is Art. 6 Abs. 1 lit. b DSGVO, which allows the processing of data for contractual fulfillment or measures thereof.
If the processing of the data supplied in the contact form are not required for contractual execution, the processing will be done in accordance with your consent (Art. 6 Abs. 1 lit. a DSGVO). A revocation of existing consent can be made at any time. The revocation can be made via email. The legality of the processing of data that took place prior to your revocation remains unaffected.
Some of these services require the creation of a login with which you can log in to a respective service in order to use it, for example, to access your serial number in the ePortfolio or to download the Cinema 4D installer.
The data supplied by you will stay with us until you request that it be deleted, revoke your consent or the necessity for saving the data no longer exists. Required legal stipulations – in particular trade and fiscal retention periods or burdens of proof – remain unaffected. After the legal retention periods have expired, all data will be deleted.
Various recipients within and outside of the EU/EEA will receive the aforementioned personal information.
Your personal data will not be passed on to third parties without your express consent, unless this is necessary to provide the service or to carry out the contract. However, it may be necessary to share your personal information with individual companies in your country that we use to provide the service. These are exclusively certified Maxon partner companies responsible for your region, who have of course been expressly advised by us to protect the privacy of our customers' personal data.
For the transmission to our subsidiaries/partner it can happen, that a appropriateness resolution by the EU commission in accordance with Art. 45 Abs. 1, 3 DS-GVO does not exist. This means that the EU commission has not yet positively determined that the level of data protection in a given country meets the data protection standards of the European Union based on the DS-GVO.
Appropriate guarantees such as company-internal and from a supervisory authority approved data protection provisions, for example, or standard EU contracts exist.
A higher probability may exist that an incorrect data transfer can occur and the protection of personal data will quantitively and qualitatively not reflect the comprehensive requirements in accordance with the DS-GVO.
in the event that a transfer is legally required and this is permittable by law and necessary for contractual settlement.
For a transfer of data outside of the European Union, the high level of European data protection does not apply. For a transfer it can happen that no appropriateness resolution in accordance with Art. 45 Abs. 1, 3 DS-GVO exists for the transfer of data. This means that the EU Commission has not yet positively determined that the country-specific level of data protection meets that of the European Union in accordance with the DS-GVO, which is why we created the aforementioned appropriate assurances.
Your personal data may possibly be processed above and beyond the intended purpose.
Furthermore, the possibility exists that you might not be able to sustainably assert or enforce your data protection rights such as those for information, correction, deletion or transfer.
A high probability may exist that an incorrect processing of data can occur and the protection of your personal data will quantitatively and qualitatively not reflect the requirements of the DS-GVO.
Each affected person has the right to information in accordance with Art. 15 DS-GVO, the right to correction in accordance with Art. 16 DS-GVO, the right to deletion in accordance with 17 DS-GVO, the right to restriction of processing in accordance with Art.18 DS-GVO, the right of revocation in accordance with Art. 21 DS-GVO and the right to data transferability in accordance with Art. 20 DS-GVO. For the right to information and the right to deletion, restrictions in accordance with §§ 34 und 35 BDSG apply. With regard to this and other inquiries regarding personal data you can contact us any time using the contact information in our Imprint.
You have the right to file a complaint with the authorized data protection supervisory authority about the processing of your personal data by us. The authority responsible for addressing legal issues regarding data protection is the state data protection commissioner of the state in which our company has its seat. The following link offers a list of data protection commissioners in Germany: www.bfdi.bund.de/DE/Infothek/Anschriften_Links/anschriften_links-node.html.
Assigned consent to the processing of personal data can be revoked at any time. This also applies to the revocation of declarations of consent that were given us prior to the new data protection regulations that took effect on May 25, 2018. Please note that the revocation cannot be made retroactively. The processing of data that took place prior to your revocation will remain unaffected.
In accordance with Art. 21 Abs.2 DS-GVO, you have the right to revoke the processing of your personal data at any time. In the event of a revocation by you, your personal data will no longer be processed for the purpose of direct advertising. Please note that the revocation cannot be made retroactively. The processing of data that took place prior to your revocation will remain unaffected.
In as far as we process your personal data based on a balance of interests you can object to the processing at any time. When submitting such an objection we ask that you supply well-founded reasons as to why you do not want your personal data to be processed as we described in this document. In the event of a justified objection we will examine the circumstances and either end the processing of data, adapt the processing of data or explain why we consider the processing of data to be essential and worthy of protection.
Our Websites can contain links to external Websites. Please note that this Data Protection Declaration applies exclusively to Maxon Websites. We have no influence on nor do we assure in any way that external Websites adhere to applicable data protection regulations.
We reserve the right to make modifications or to amend this Data Protection Declaration in accordance with applicable data protection requirements.

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Art. 6
Art. 6
Art. 6
Art. 6
Art. 45
Art. 45
Art. 15
Art. 16
Art.18
Art. 21
Art. 20
Art. 21


text:
"The Governor's Rangers of Philadelphia County"
John H. Jack Captain October 29, 1861 3 Wounded at 2d Bull Run; promoted from 1st Lt. to Captain, July 1, 1863; transferred to Company A, 186th Regiment P. V.
John Cullin 1st Lt. October 29, 1861 3 Promoted to Sergeant; to 1st Sergeant, November 1, 1862; to 2d Lt., December 1, 1862; to 1st Lt., February 6, 1864; transferred to 191st Regiment P. V.
Richard P. Dillon Sergeant October 29, 1861 3 Wounded at South Mountain; transferred to Company B, 191st Regiment P. V.
John M'Donough Sergeant November 1, 1861 3 Promoted to Sergeant; transferred to Company B, 191st Regiment P. V.
Thos. Fitzsimmons Sergeant October 29, 1861 3 Promoted to Sergeant; transferred to Company B, 191st Regiment P. V.
Barrett, Ed. Private 3 Died May 28, 1863; buried in Military Asylum Cemetery, D. C.
Cox, Christopher Private September 17, 1862 3 Transferred to Company B, 191st Regiment P. V.
Darragh, William Private January 22, 1862 3 Transferred to Company B, 191st Regiment P. V.
Davis, Robert M. Private August 21, 1862 3 Wounded at Fredericksburg; transferred to Company B, 191st Regiment P. V.
Eberle, Jacob Private 3 Died December 16, 1861; buried in Military Asylum Cemetery, D. C.
Fitzsimmons, Thos. Private October 29, 1861 3 Promoted to Sergeant Company B, 191st Regiment P. V.
Fadden, Patrick Private August 25, 1862 3 Wounded at Antietam,September 17, 1862; transferred to Company B, 191st Regiment P. V.
Gillespie, James Private October 29, 1861 3 Died October 11, 1862; buried in Military Asylum Cemetery, D. C.
Gilloly, John Private October 29, 1861 3 Transferred to Company B, 191st Regiment P. V.
Hagan, Michael Private September 15, 1862 3 Transferred to Company B, 191st Regiment P. V.
Keener, Jacob Private January 22, 1862 3 Transferred to Company B, 191st Regiment P. V.
Kilcher, John Private 3 Died August 25, 1862; buried at Point Lookout, Md.
Kneerison, E. C. Private 3 Died June 17, 1862; buried at Portsmouth, Va.
Lafferty, James Private September 7, 1862 3 Transferred to Company B, 191st Regiment P. V.
Larkins, George Private January 22, 1862 3 Wounded at Charles City Cross Roads; transferred to Company B, 191st Regiment P. V.
Montgomery, Hugh Private September 10, 1862 3 Transferred to Company B, 191st Regiment P. V.
Maguire, Owen Private September 20, 1862 3 Transferred to Company B, 191st Regiment P. V.
Moore, John B. Private October 29, 1861 3 Transferred to 191st Regiment P. V.
Murphy, Edward Private September 6, 1862 3 Transferred to Company B, 191st Regiment P. V.
M'Dowell, Wm. Private September 9, 1862 3 Captured at Fredericksburg; transferred to Company B, 191st Regiment, P. V.
M'Dowell, John Private September 30, 1862 3 Transferred to Company B, 191st Regiment P. V.
Montague, John Private September 1, 1862 3 Transferred to Company H, 31st Regiment P. V.
Reed, James Private September 26, 1862 3 Transferred to Company B, 191st Regiment P. V.
Shaw, John Private January 22, 1862 3 Wounded at Mechanicsville, June 26, 1862; transferred to Company B, 191st Regiment P. V.
Timlin, John Private October 29, 1861 3 Transferred to Company B, 191st Regiment P. V.
Walls, John Private October 29, 1861 3 Captured at Gaines' Mill, June 27, 1862; transferred to Company B, 191st Regiment P. V.
White, Richard Private October 29, 1861 3 Died June 27, 1863; buried in Military Asylum Cemetery, D. C.
Whartenby, W. H. Private June 8, 1862 3 Transferred to Company B, 191st Regiment P. V.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


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Peter Campbell King was greatly influenced by his father—longtime and well-respected Columbus attorney Arthur D. King— who instilled in him his tireless work ethic and uncompromising standard of excellence. He joined his father in the practice of law in 1979 and developed a community-based practice addressing civil law issues. Pete and his brother practiced with their father until he passed away in 2007. On any given day, Pete can be found in the boardroom of any one of the several regional water companies he represents or in the courtrooms of any level of our state and federal courts. He advocates for his clients’ interests or confers with community leaders in both the private and public sectors, providing sound and reasoned counsel drawn from his years of experience and knowledge of the law.
From 1984 through 1995, he served as City Attorney for the City of Columbus. He cultivated a thriving practice in the areas of the law where he could help the people in his community: representing people in controversies with their insurance carriers, representing property owners in legal condemnation matters, representing people injured by negligent drivers and by defective products, and representing and advising fellow businessmen and women with civil litigation issues. He also maintains an active probate and estate practice.
Mr. King’s client base extends beyond the private sector into the public sector arenas of utility law, law enforcement, and election law. He is legal counsel to regional water companies in southeastern Indiana, advising them in all areas of their operations, from litigation at the administrative level including the protection of water quality, administrative proceedings, and rate issues before the Indiana Utility Regulatory Commission (IURC), to real estate and easement acquisition issues. Additionally, he represents the Sheriff of Bartholomew County, Indiana in personnel matters, administrative hearings and civil litigation, and the Bartholomew County Election Board.
Jennings Water, Inc. v. City of North Vernon, Ind., 895 F.2d 311 (7th Cir. 1989), affirming, 682 F.Supp. 421 (S.D. Ind. 1988); Steve Malone d/b/a Cousins Insurance Agency and Gallant Insurance Company, A Member of Warrior Insurance Group, Inc. v. Anna M. Basey and Sharon Basey, 770 N.E.2d 846 (Ind. Ct. App. 2002); Bridgestone Americas Holding, Inc., Bridgestone/Firestone, Inc., Bridgestone/Firestone North American Tire, LLC and Bridgestone/Firestone Manufacturing Operations Division v. Violet Mayberry as Personal Representative of the Estate of Harmony B. Wigley, and Audrey E. Wigley as Mother of Harmony B. Wigley, Deceased, 878 N.E.2d 189, (Ind. 2007).; Stephen L. and Melinda Vaughn v. Daniels Company (West Virginia), Inc. and Solar Sources, Inc., 841 N.E.2d 11333, (Ind. 2006); Robert Sexton, Melinda Sexton, Stepanie Flinn, Craig Flinn, David Helt, Gail Helt, Jerry Marsh, Hazel Marsh, Steve Bowman and Celeste Bowman v. Jackson County Board of Zoning Appeals and Jerry D. Otte, Thomas Bryant, Ken Turner, Gene Speaker and Francis Elliot, in their capacity as members of The Jackson County Board of Zoning Appeals, N.E.2d, (Ind. Ct. App. 2008).
Indiana Supreme Court; U.S. Supreme Court; U.S. Court of Appeals, Seventh Circuit; U.S. District Court, Southern District of Indiana; U.S. District Court, Northern District of Indiana.
Throughout his lifetime, Kevin King experienced the dedication and hard work ethic his father, Arthur D. King, committed to the practice of law until he passed in 2007. He joined his father and brother in the practice of law in 1988 after serving approximately two years with the United States Army Trial Defense Service. Upon returning to Columbus, he developed a regional- and national-based practice addressing civil law issues.
Kevin King’s drive to ensure consumer products are safe evolved from his childhood conversations with Leon D. Cline, a devoted consumer lawyer and his father’s law partner. Kevin realized at a young age that people were needlessly injured and/or killed as a result of hazardous products. His consumer legal practice was further shaped by Harry Philo, a renowned warrior for people.
Kevin King believes the primary purpose of tort law is the prevention of serious injury and/or death.
Kevin King has been involved in consumer safety cases, primarily automobile related, across North America, including but not limited to Alaska, Arizona, California, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Missouri, Montana, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Texas, Utah, Virginia, West Virginia, and Canada.
Kevin King has been a member of the Society of Automotive Engineers since 2002 and has attended several of its seminars including, but not limited to: Fundamentals of Steering Systems, Tire & Wheel Safety Issues, The Tire as a Vehicle Component, Occupant and Vehicle Kinematics in Rollovers, Role of the Seat in Rear Crash Safety, 2004 Automotive Dynamics’ Stability Controls, Designing Safer Vehicles, Vehicle Dynamics for Passenger Cars and Light Trucks, etc.
Henson v. CSC Credit Services, 29 F.3d 280, (7th Cir. 1994); Richard and Sandra Finchum v. Ford Motor Company, et. al., 57 F.3d 526, (7th Cir. 1995); Joseph and Marilyn Harmon v. Crown Equipment Corporation, et. al, 115 F.3d 477, (7th Cir. 1997), certiorari denied, 522 U.S. 966, 118 S.Ct. 413 (1997); Stephen L. and Melinda Vaughn v. Daniels Company (West Virginia), Inc. and Solar Sources, Inc. 841 N.E.2d 11333, (Ind. 2006); Bridgestone Americas Holding, Inc., Bridgestone/Firestone, Inc., Bridgestone/Firestone North American Tire, LLC and Bridgestone/Firestone Manufacturing Operations Division v. Violet Mayberry as Personal Representative of the Estate of Harmony B. Wigley, and Audrey E. Wigley as Mother of Harmony B. Wigley, Deceased, 878 N.E.2d 189, (Ind. 2007).

matches: v. v. v. v. v. v. v. v. v. v.


In the case of an individual, there shall be allowed as a deduction an amount equal to the qualified tuition and related expenses paid by the taxpayer during the taxable year.
The amount allowed as a deduction under subsection (a) with respect to the taxpayer for any taxable year shall not exceed the applicable dollar limit.
(ii) in the case of any other taxpayer, zero.
(iii) in the case of any other taxpayer, zero.
(ii) after application of sections 86, 135, 137, 219, 221, and 469.
No deduction shall be allowed under subsection (a) for any expense for which a deduction is allowed to the taxpayer under any other provision of this chapter.
No deduction shall be allowed under subsection (a) for a taxable year with respect to the qualified tuition and related expenses with respect to an individual if the taxpayer or any other person elects to have section 25A apply with respect to such individual for such year.
The total amount of qualified tuition and related expenses shall be reduced by the amount of such expenses taken into account in determining any amount excluded under section 135, 529(c)(1), or 530(d)(2). For purposes of the preceding sentence, the amount taken into account in determining the amount excluded under section 529(c)(1) shall not include that portion of the distribution which represents a return of any contributions to the plan.
No deduction shall be allowed under subsection (a) to any individual with respect to whom a deduction under section 151 is allowable to another taxpayer for a taxable year beginning in the calendar year in which such individual's taxable year begins.
The term "qualified tuition and related expenses" has the meaning given such term by section 25A(f). Such expenses shall be reduced in the same manner as under section 25A(g)(2).
No deduction shall be allowed under subsection (a) to a taxpayer with respect to the qualified tuition and related expenses of an individual unless the taxpayer includes the name and taxpayer identification number of the individual on the return of tax for the taxable year.
A deduction shall be allowed under subsection (a) for qualified tuition and related expenses for any taxable year only to the extent such expenses are in connection with enrollment at an institution of higher education during the taxable year.
Subparagraph (A) shall not apply to qualified tuition and related expenses paid during a taxable year if such expenses are in connection with an academic term beginning during such taxable year or during the first 3 months of the next taxable year.
If the taxpayer is a married individual (within the meaning of section 7703), this section shall apply only if the taxpayer and the taxpayer's spouse file a joint return for the taxable year.
If the taxpayer is a nonresident alien individual for any portion of the taxable year, this section shall apply only if such individual is treated as a resident alien of the United States for purposes of this chapter by reason of an election under subsection (g) or (h) of section 6013.
Except as otherwise provided by the Secretary, no deduction shall be allowed under subsection (a) unless the taxpayer receives a statement furnished under section 6050S(d) which contains all of the information required by paragraph (2) thereof.
The receipt of the statement referred to in subparagraph (A) by an individual described in subsection (c)(3) shall be treated for purposes of subparagraph (A) as received by the taxpayer.
The Secretary may prescribe such regulations as may be necessary or appropriate to carry out this section, including regulations requiring recordkeeping and information reporting.
A prior section 222 was renumbered section 224 of this title.
Another prior section 222, added Pub. L. 97–34, title I, §125(a), Aug. 13, 1981, 95 Stat. 201; amended Pub. L. 97–448, title I, §101(f), Jan. 12, 1983, 96 Stat. 2367, related to deduction of adoption expenses, prior to repeal by Pub. L. 99–514, title I, §§135(a), 151(a), Oct. 22, 1986, 100 Stat. 2116, 2121, applicable to taxable years beginning after Dec. 31, 1986.
2018—Subsec. (e). Pub. L. 115–123 substituted "December 31, 2017" for "December 31, 2016".
2017—Subsec. (b)(2)(C)(i). Pub. L. 115–97 struck out "199," after "and sections".
2015—Subsec. (d)(6), (7). Pub. L. 114–27 added par. (6) and redesignated former par. (6) as (7).
Subsec. (e). Pub. L. 114–113 substituted "December 31, 2016" for "December 31, 2014".
2014—Subsec. (e). Pub. L. 113–295 substituted "December 31, 2014" for "December 31, 2013".
2013—Subsec. (e). Pub. L. 112–240 substituted "December 31, 2013" for "December 31, 2011".
2010—Subsec. (e). Pub. L. 111–312 substituted "December 31, 2011" for "December 31, 2009".
2008—Subsec. (e). Pub. L. 110–343 substituted "December 31, 2009" for "December 31, 2007".
2006—Subsec. (b)(2)(B). Pub. L. 109–432, §101(b), substituted "After 2003" for "2004 and 2005" in heading and "any taxable year beginning after 2003" for "a taxable year beginning in 2004 or 2005" in introductory provisions.
Subsec. (e). Pub. L. 109–432, §101(a), substituted "2007" for "2005".
2004—Subsec. (b)(2)(C)(i). Pub. L. 108–357 inserted "199," before "911".
Pub. L. 115–123, div. D, title I, §40203(b), Feb. 9, 2018, 132 Stat. 145, provided that: "The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2016."
Amendment by Pub. L. 115–97 applicable to taxable years beginning after Dec. 31, 2017, except as provided by transition rule, see section 13305(c) of Pub. L. 115–97, set out as a note under section 74 of this title.
Pub. L. 114–113, div. Q, title I, §153(b), Dec. 18, 2015, 129 Stat. 3066, provided that: "The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2014."
Amendment by Pub. L. 114–27 applicable to taxable years beginning after June 29, 2015, see section 804(d) of Pub. L. 114–27, set out as a note under section 25A of this title.
Pub. L. 113–295, div. A, title I, §107(b), Dec. 19, 2014, 128 Stat. 4013, provided that: "The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2013."
Pub. L. 112–240, title II, §207(b), Jan. 2, 2013, 126 Stat. 2324, provided that: "The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2011."
Pub. L. 111–312, title VII, §724(b), Dec. 17, 2010, 124 Stat. 3316, provided that: "The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2009."
Pub. L. 110–343, div. C, title II, §202(b), Oct. 3, 2008, 122 Stat. 3864, provided that: "The amendment made by this section [amending this section] shall apply to taxable years beginning after December 31, 2007."
Pub. L. 109–432, div. A, title I, §101(c), Dec. 20, 2006, 120 Stat. 2933, provided that: "The amendments made by this section [amending this section] shall apply to taxable years beginning after December 31, 2005."
Amendment by Pub. L. 108–357 applicable to taxable years beginning after Dec. 31, 2004, see section 102(e) of Pub. L. 108–357, set out as a note under section 56 of this title.
Section applicable to payments made in taxable years beginning after Dec. 31, 2001, see section 431(d) of Pub. L. 107–16, set out as an Effective Date of 2001 Amendment note under section 62 of this title.


TLJ Daily E-Mail Alert No. 1,710, February 4, 2008.
February 4, 2008, Alert No. 1,710.
2/1. Microsoft announced in a release that "it has made a proposal to the Yahoo! Inc. ... Board of Directors to acquire all the outstanding shares of Yahoo! common stock for per share consideration of $31 representing a total equity value of approximately $44.6 billion."
Yahoo issued a release in response in which it stated that "it has received an unsolicited proposal from Microsoft to acquire the Company", and its "Board of Directors will evaluate this proposal carefully and promptly in the context of Yahoo!'s strategic plans and pursue the best course of action to maximize long-term value for shareholders."
Microsoft stated in its release that "The online advertising market is growing at a very fast pace, from over $40 billion in 2007 to nearly $80 billion by 2010. The resulting benefits of scale along with the associated capital costs for advertising platform providers make this a time of industry consolidation and convergence."
"Today this market is increasingly dominated by one player", wrote Microsoft, without mentioning Google by name. "Together, Microsoft and Yahoo! can offer a competitive choice while better fulfilling the needs of customers and partners."
The House Judiciary Committee's (HJC) Task Force on Antitrust and Competition Policy will hold a hearing titled "Hearing on the State of Competition on the Internet" on February 8, 2008. See, HJC notice.
Rep. John Conyers (D-MI), the Chairman of the HJC, and Rep. Lamar Smith (R-TX), the ranking Republican on the HJC, wrote in a joint statement that "Microsoft's bid to acquire Yahoo is certainly one of the largest technology mergers we’ve seen and presents important issues regarding the competitive landscape of the Internet. The House Judiciary Committee’s Task Force on Antitrust and Competition Policy intends to give the proposal a careful examination by holding a hearing next week. The Committee will hear from experts who will weigh in on whether this proposed consolidation works to further or undermine the fundamental principles of a competitive Internet.
The transaction would require regulatory approvals.
Cord Blomquist of the Competitive Enterprise Institute (CEI) stated in a release that "Unfortunately for consumers, the FTC will face pressure by the same groups that lobbied against the proposed Google/DoubleClick merger ... And again, many of the arguments won't be about competition, but instead will focus on privacy concerns."
He added that "With the Google/DoubleClick approval now serving as precedent, the FTC should be able to dismiss these arguments. The FTC approval must make a decision based on competition, which this deal increases significantly ... But, since that the deal is still pending in the EU and several groups are challenging the approval in the US, ‘Microhoo!’ may languish for a while."
2/3. Google's Chief Legal Officer, David Drummond, issued a statement on February 3, 2008, regarding Microsoft's offer to purchase Yahoo. He wrote that "Microsoft's hostile bid for Yahoo! raises troubling questions. This is about more than simply a financial transaction, one company taking over another. It's about preserving the underlying principles of the Internet: openness and innovation."
Drummond continued. "Could Microsoft now attempt to exert the same sort of inappropriate and illegal influence over the Internet that it did with the PC? While the Internet rewards competitive innovation, Microsoft has frequently sought to establish proprietary monopolies -- and then leverage its dominance into new, adjacent markets."
He also stated, "Could the acquisition of Yahoo! allow Microsoft -- despite its legacy of serious legal and regulatory offenses -- to extend unfair practices from browsers and operating systems to the Internet? In addition, Microsoft plus Yahoo! equals an overwhelming share of instant messaging and web email accounts. And between them, the two companies operate the two most heavily trafficked portals on the Internet. Could a combination of the two take advantage of a PC software monopoly to unfairly limit the ability of consumers to freely access competitors' email, IM, and web-based services?"
Drummond urged regulatory action. "Policymakers around the world need to ask these questions -- and consumers deserve satisfying answers."
2/1. The House is scheduled to consider S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act of 2007", on Wednesday, February 6, 2008, under suspension of the rules. See, Rep. Hoyer's calendar [PDF] for week of February 4.
The Senate passed this bill on December 17, 2007. The House passed its versions of this bill, HR 2601 [LOC | WW], also titled the "Do-Not-Call Registry Fee Extension Act of 2007", on December 11, 2007. The two bills a substantially the same, and have broad bipartisan support.
See also, story titled "House Commerce Committee Approves Do Not Call Registry Fee Extension Bill" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007, and story titled "Senate Commerce Committee Approves Bill to Revise and Extend Do Not Call Registry Fees" in TLJ Daily E-Mail Alert No. 1,620, August 1, 2007.
S 781 extends the authority of the Federal Trade Commission (FTC) to collect Do-Not-Call Registry fees to fiscal years after fiscal year 2007. In 2003, the Congress enacted and President Bush signed HR 395 (108th Congress), the "Do-Not-Call Implementation Act". It provided that the FTC may only collect fees through 2007. See also, stories titled "Senate Passes Do Not Call Implementation Act" in TLJ Daily E-Mail Alert No. 605, February 17, 2003, and "Bush Signs Do Not Call Implementation Act" in TLJ Daily E-Mail Alert No. 621, March 12, 2003.
The 2003 Act made it illegal for telemarketers to call consumers with whom they do not have a prior business relationship. It also limits the times of day they can call, the use of auto dialing technology, and the area codes accessible to telemarketers. The 2003 Act provides fines for calling numbers on the Do Not Call Registry, and requires telemarketers to keep their call lists up to date with the Registry.
S 781 also lower fees for telemarketers who access the database to $54 per area code, or a maximum of $14,850. Currently, telemarketers pay $62 for each area code, with the first five area codes free, and total fees capped at $17,050. The bill also provides that the FCC shall not charge for the first 5 area codes of data. The bill also provides for future adjustments of fees according to changes in the Consumer Price Index.
S 781 prohibits telemarketers from entering into fee and data sharing arrangements, "including any arrangement to divide the costs to access the registry among various clients of a telemarketer or service provider".
The bill also adds to the FTC's reporting requirements, and extends rulemaking authority to the FTC to carry out the amendments in the bill.
2/1. The Securities and Exchange Commission (SEC) announced in a release that "its professional staff has commenced a cost-benefit study of an upcoming auditor attestation requirement for smaller companies under Section 404(b) of the Sarbanes-Oxley Act of 2002."
This release also states that "In connection with the study, the four-member Commission unanimously proposed on Jan. 31, 2008, the one-year extension of the Section 404(b) auditor attestation requirement for smaller companies that SEC Chairman Christopher Cox had previously announced in testimony before the House Small Business Committee in December 2007. The postponement would allow time for completion of the study. Under the proposed extension, the Section 404(b) requirements would apply to smaller public companies beginning with fiscal years ending on or after Dec. 15, 2009."
The SEC also announced that it will conduct a web based survey of companies that are subject to Section 404; and "in-depth interviews including companies that are just now becoming compliant". It added that it will publish a notice in the Federal Register seeking comments on the proposed extension of the auditor attestation requirement for smaller companies.
Rep. Nydia Velázquez (D-NY) (at right), the Chairman of the House Small Business Committee, stated in a release that "I have repeatedly called on the SEC to delay implementation and conduct this study, and I am very pleased that they are taking action. It is essential, however, that their analysis be designed with the needs of entrepreneurs in mind. That is the only way it will meet its intended goal".
The Sarbanes-Oxley Act of 2002 was HR 3763 in the 107th Congress. It is now Public Law No. 107-204.
Section 404 is titled "Management assessment of internal controls". Subsection 404(b) provides, in full, as follows: "(b) INTERNAL CONTROL EVALUATION AND REPORTING -- With respect to the internal control assessment required by subsection (a), each registered public accounting firm that prepares or issues the audit report for the issuer shall attest to, and report on, the assessment made by the management of the issuer. An attestation made under this subsection shall be made in accordance with standards for attestation engagements issued or adopted by the Board. Any such attestation shall not be the subject of a separate engagement."
Small public technologies companies have long argued that Section 404, and the SEC's implementation of it, is imposing huge burdens on them, with little benefit to investors. These arguments are supported by the May 8, 2006, Government Accountability Office (GAO) report [93 pages in PDF] titled "Sarbanes-Oxley Act: Consideration of Key Principles Needed in Addressing Implementation for Smaller Public Companies". See also, story titled "GAO Reports that Section 404 of Sarbanes Oxley Burdens Small Public Companies" in TLJ Daily E-Mail Alert No. 1,366, May 9, 2006.
See also, the AeA's February 2005 report titled "Sarbanes-Oxley Section 404: The 'Section' of Unintended Consequences and its Impact on Small Business".
1/29. The U.S. District Court (DC) issued a Memorandum Opinion [PDF] in EFF v. DOJ, denying the Electronic Frontier Foundation's (EFF) motion for reconsideration of the District Court's previous ruling against the EFF on its request from records from the Department of Justice (DOJ) regarding the National Security Agency's (NSA) wiretapping.
The District Court rejected the EFF's assertion that a subsequent article in the Washington Post supports the EFF's contention that the requested records are legal analysis rather than operational details.
The EFF requested records, brought this action, pursuant to the Federal Freedom of Information Act (FOIA), which is codified a 5 U.S.C. § 552.
This case is Electronic Frontier Foundation v. Department of Justice, U.S. District Court for the District of Columbia, D.C. No. 07-00403 (TFH), Judge Thomas Hogan presiding.
1/30. The Copyright Royalty Judges published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, it proposed rules that set the rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period 2009-2013. Comments or objections are due by February 29, 2008. See, Federal Register, January 30, 2008, Vol. 73, No. 20, at Pages 5466-5470.
1/30. The Copyright Royalty Judges published a notice in the Federal Register that announces the commencement of a proceeding to determine the Phase II distribution of 1998 and 1999 royalties collected under the cable statutory license. Petitions to participate and the filing fee are due by February 29, 2008. See, Federal Register, January 30, 2008, Vol. 73, No. 20, at Page 5596-5597.
1/30. The Copyright Royalty Judges published a notice in the Federal Register that requests comments regarding controversies at Phase I and Phase II for distribution of the 1999 through 2005 royalty funds collected under the satellite carrier statutory license. The deadline to submit comments is February 29, 2008. See, Federal Register, January 30, 2008, Vol. 73, No. 20, at Page 5597.
settlement in connection with the 2004 and 2005 cable royalty funds. The notice also requests comments on a motion for partial distribution in connection with those funds. Comments are due by February 29, 2008. See, Federal Register, January 30, 2008, Vol. 73, No. 20, at Pages 5597-5598.
1/31. Yahoo named Roy Bostock its new non-executive Chairman, replacing Terry Semel, effective January 31, 2008. Jerry Yang remains CEO. See, Yahoo release.
1/31. Solveig Singleton joined the Institute for Policy Innovation (IPI) as Adjunct Fellow specializing in intellectual property and communications policy. She previously worked at the Progress & Freedom Foundation (PFF).
The House will not meet. See, Rep. Hoyer's calendar [PDF] for week of February 4.
The Senate will meet at 2:00 PM. It will resume consideration of S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007".
10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare advice on U.S. positions for the April 2008 meeting of the Organization of American States (OAS) Inter-American Telecommunication Commission (CITEL) Permanent Consultative Committee II (Radiocommunication including broadcasting) (PCC.II) and on various matters associated with the Asia-Pacific Economic Cooperation (APEC). See, notice in the Federal Register, January 16, 2008, Vol. 73, No. 11, at Page 2978. Location: Room 6B516, Federal Communications Commission (FCC), 445 12th St., SW.
The House will meet at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act of 2007". See, Rep. Hoyer's calendar [PDF] for week of February 4.
8:00 AM - 12:00 NOON. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will meet. See, notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at Page 2458-2459. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.
8:30 AM - 5:30 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will jointly host a public workshop titled "2008 International Technical Assistance Workshop: Charting the Future Course of International Technical Assistance at the U.S. Department of Justice and the Federal Trade Commission". See, notice. Location: FTC Conference Center, 601 New Jersey Ave., NW.
9:00 AM - 1:30 PM. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) will host a "summit on issues relating to the deployment and use of Next Generation 911 technology and the coordination of those efforts among Public Safety Answering Points, the telecommunications industry and manufacturers". See, notice [PDF] and registration page. Location: Commission Meeting Room, FCC, 445 12th St., SW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in LSI Industries v. Imagepoint, a patent infringement case, App. Ct. No. 2007-1292. Location: Courtroom 201, 717 Madison Place, NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in O2 Micro International v. Beyond Innovation Technologies, a patent infringement case, App. Ct. No. 2007-1302. This is an appeal from the U.S. District Court (EDTex), D.C. No. 2-04-CV-32 (TJW). See, District Court's March 21, 2007, Memorandum Opinion and Order [PDF]. Location: Courtroom 402, 717 Madison Place, NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ampex v. Eastman Kodak, a patent infringement case, App. Ct. No. 2007-1089. This is an appeal from the U.S. District Court (DDel), D.C. No. 04-1373-KAJ. Location: Courtroom 203, 717 Madison Place, NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Metropolitan Life v. Bancorp, App. Ct. No. 2007-1312. Location: Courtroom 203, 717 Madison Place, NW.
12:00 NOON - 1:30 PM. The Federal Bar Association (FBA) will host an event titled "The 9/11 Act -- Overview and Authorities". The price to attend ranges from $10-$15. See, registration page. Location: Transportation Security Administration (TSA), Town Hall, 601 S. 12th St., Arlington, VA.
6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Cyberspace and International Practice Committees will host an event titled "Broadband Deployment and Take-up: What Are the Experiences of Various Countries?" This event offers continuing legal education (CLE) credits. See, notice and registration page. The price to attend ranges from $25 to $135. Registrations are due by 5:00 PM on February 4. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.
TIME? Day one of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board. The DOD has not disclosed the agenda. See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 173-174. Location: Pentagon, Arlington, VA.
The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's calendar [PDF] for week of February 4.
8:30 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting titled "The Implications of Sovereign Wealth Fund Investment on National Security". See, notice in the Federal Register, January 22, 2008, Vol. 73, No. 14, at Pages 3804-3805. Location: Room 562, Dirksen Building, Capitol Hill.
10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Oversight Hearing of the Department of Justice". See, notice. Location: Room 2141, Rayburn Building.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Gammino v. Southwestern Bell, one of several related patent infringement cases involving an algorithm for blocking international telephone calls. This appeal, App. Ct. No. 2007-1201, is from the U.S. District Court (NDTex), D.C. No. 3:2005cv00850, which entered summary judgment for Southwestern Bell (AT&T). See, 512 F.Supp.2d 626. Location: Courtroom 201, 717 Madison Place, NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Avocent Huntsville v. Aten International, a patent infringement case, App. Ct. No. 2007-1553. This is an appeal from the U.S. District Court (NDAlab). Location: Courtroom 203, 717 Madison Place, NW.
TIME? Day two of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board. The DOD has not disclosed the agenda. See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 173-174. Location: Pentagon, Arlington, VA.
11:00 AM. The House Judiciary Committee's (HJC) Task Force on Antitrust and Competition Policy will hold a hearing titled "Hearing on the State of Competition on the Internet". See, notice. Location: Room 2141, Rayburn Building.
10:00 AM. Deadline for all parties except foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making Special 301 identifications of countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, story titled "OUSTR Seeks Special 301 Comments on Countries that Deny Adequate IPR Protection" in TLJ Daily E-Mail Alert No. 1,703, January 22, 2008, and notice in the Federal Register, January 16, 2008, Vol. 73, No. 11, at Pages 2958-2959.
Deadline to submit initial comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the meaning of the Copyright Act's term "cable system", and issues related to the phantom signal phenomenon. See, notice in the Federal Register, December 12, 2007, Vol. 72, No. 238, at Pages 70529-70540, and story titled "Copyright Office Issues Notice of Inquiry Regarding Cable Systems" in TLJ Daily E-Mail Alert No. 1,688, December 13, 2007.
Deadline to submit comments to the Office of the Director of National Intelligence (ODNI) in response to its notice of proposed rulemaking regarding ODNI policies for collecting and maintaining personally identifiable records and processes for administering requests for records under the Privacy Act of 1974, which is codified at 5 U.S.C. § 552a(b). See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 113-125. These proposed rules allow for the disclosure of information to courts, government agencies, Congress, any Congressional committee or subcommittee, and a consumer reporting agency (in accordance with 31 U.S.C. § 3711(e)). These proposed rules also enumerate numerous exemptions of records systems under the Privacy Act.


We have already seen, in treating of forbearance as a consideration, that where a demand is made and disputed, or a suit is brought, the parties may enter into a compromise, and that the party upon whom the demand is made or against whom the suit is brought will be bound thereby. The consideration for his promise is the forbearance of the other party to insist on his original demand, or to further prosecute his action.40 In such a case the creditor or plaintiff is also bound by the compromise. The settlement of the dispute and definite promise by the debtor is a consideration for his promise to forego any further claim. He cannot disregard the compromise on the ground that the debtor promised only what he was already bound to do.41.
36 Pinnel's Case, 5 Coke, 117a; Brooks v. White, 2 Mete. (Mass.) 2S3, 37 Am. Dec. 95; Harper v. Graham, 20 Ohio, 105; Schweider v. Lang, 29 Minn. 254, 13 N. W. 33, 43 Am. Rep. 202; McKenzie v. Culbreth, 66 N. C. 534; Jones v. Perkins, 29 Miss. 139, 64 Am. Dec. 136; Reid v. Hibbard, 6 Wis. 175; Chicora Fertilizer Co. v. Dunan, 91 Md. 144, 46 Atl. 347, 50 L. R. A. 401. Cf. Saunders v. Whitcomb, 177 Mass. 457, 59 N. E. 192. See "Accord and Satisfaction," Dec. Dig. (Key-No.) §§ 9, 11; Cent. Dig. §§ 75-91.
37 JAFFRAY v. DAVIS, 124 N. Y. 164, 26 N. E. 351, 11 L. R. A. 710, Throckmorton Cas. Contracts, 120; Post v. Bank, 138 I11. 559, 28 N. E. 978. See "Accord and Satisfaction;' Dec. Dig. (Key-No.) §§ 9, 11; Cent. Dig. §§ 75-91.
38Wilkinson v. Byers, 1 Adol. & E. 106; Baird v. United States, 96 U. S. 430, 24 L. Ed. 703; Goss v. Ellison, 136 Mass. 503; Potter v. Douglass, 44 Conn. 541; Riley v. Kershaw, 52 Mo. 224; Ogbom v. Hoffman, 52 Ind. 439; Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785; Sanford v. Abrams, 24 Fla. 181, 2 South. 373; Berdell v. Bissell, 6 Colo. 162; Stearns v. Johnson, 17 Minn. 142 (Gil. 116); Tanner v. Merrill, 108 Mich. 58, 65 N. W. 664, 31 L. R, A. 171, 62 Am. St. Rep. 687; Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695; Ostrander v. Scott, 161 I11. 339, 43 N. E. 1089; Chicago, M. & St P. Ry. v. Clark, 178 U. S. 353, 20 Sup. Ct. 924, 44 L. Ed. 1099. But see Huff v. Logan (Ky.) 60 S. W. 483. See "Accord and Satisfaction," Dec. Dig. (Key-No.) § 10; Cent. Dig. §§ 67-74.
39Tompkins v. Hill, 145 Mass. 379, 14 N.. E. 177; post, p. 615. See "Accord and Satisfaction," Dec. Dig. (Key-No.) § 10; Cent. Dig. §§ 67-74.


In Nichia the Circuit affirms the denial of a permanent injunction because Nichia failed to prove irreparable injury. In RecogniCorp the panel throws out as not being directed to patentable subject matter claims directed to facial image transmission technology allegedly used in Nintendo’s Wii gaming system. The Circuit says in Helsinn v. Teva that the AIA did not change the law to require that the details of an invention need to be made public in order to be an invalidating sale.
Despite the defendant’s failure to invalidate any of the three patents in suit and its unsuccessful noninfringement arguments, the Circuit affirms the denial of a permanent injunction requested by LED maker Nichia due to its dominant share of the market, its failure to identify a single lost sale to Everlight, and its widespread licensing of the patents to other low cost competitors. This affirmance is based solely on the lack of a showing of irreparable injury, without consideration of the other three eBay factors.
Nichia challenges the district court’s finding that it failed to establish that it will suffer irreparable harm absent an injunction. The court’s conclusion relied on several findings, each weighing against Nichia. Specifically, the court found that (1) there is an absence of meaningful competition; (2) Nichia had failed to establish past irreparable harm, or the likelihood of irreparable harm in the future based on lost sales or price erosion; and (3) Nichia’s licensing of the patents to major competitors suggested that harm from infringement of the patents-in-suit is not irreparable.
The panel finds that there is abundant support for these factual findings. As to the absence of meaningful competition, the district court found that Everlight generally sells to distributors rather than directly to customers, as Nichia does. The court explained that Everlight’s competition accounted for “the proverbial ‘drop in the bucket’” when compared to Nichia’s total sales. Nichia identified 516 sales opportunities, with Everlight as a competitor in only 3. As to the one and only alleged instance of a lost sale, the evidence showed several other lower-priced, licensed competitors for the same opportunity.
Nichia also had alleged that it suffered price erosion because of Everlight’s infringement in a sale to General Electric. While Nichia eventually won the GE contract at a price lower than it originally offered, Nichia’s lower-price sale had been required by GE, so Nichia was going to have to lower its prices regardless of Everlight’s competition. Further, the court found that several licensed competitors had offered products at lower prices, which drove down prices. There was therefore no clear error in the finding that Nichia failed to establish price erosion.
Nichia argues that the court wrongly found that its licensing activities precluded a finding of irreparable harm. To the extent the district court adopted a categorical rule, the panel agrees with Nichia. But the panel agrees that Nichia’s prior licenses weigh against a finding of irreparable harm.
Because the panel finds no clear error in the district court’s finding that Nichia failed to prove that it would suffer irreparable harm absent the injunction, and this is one of the four equitable factors, the court did not abuse its discretion in denying Nichia’s request for an injunction.
This refusal of the panel to see a need to evaluate the other three eBay factors is consistent with some and inconsistent with other Circuit and district court decisions, which often have evaluated all four factors and then decided whether injunctive relief is appropriate.
RecogniCorp sued Nintendo for infringement of a patent directed to facial image transmission allegedly used in Nintendo’s Wii video gaming system. The Circuit affirms a determination of invalidity by Judge Jones of the Western District of Washington under § 101, holding that the claims are directed to the abstract idea of encoding and decoding image data, and the claims do not contain an inventive concept sufficient to render the patent eligible.
Under the first step of Alice, the panel holds that claim 1 is directed to the abstract idea of encoding and decoding image data. This method reflects standard encoding and decoding, an abstract concept long utilized to transmit information.
The panel rejects RecogniCorp’s citation of Diehr, noting that Diehr is distinguishable because, outside of the math, claim 1 of the patent is not directed to otherwise eligible subject matter. Adding one abstract idea (math) to another abstract idea (encoding and decoding) does not render the claim non-abstract. The panel also distinguishes Enfish. Unlike Enfish, claim 1 does not claim a software method that improves the functioning of a computer. The panel holds that this case is similar to Digitech, where the claims were directed to the abstract idea of organizing information through mathematical correlations.
Proceeding to the second step of Alice, the panel finds that these claim elements do not transform the nature of the patent claims into a patent-eligible application. Distinguishing DDR Holdings, the panel holds that claim 1 contains no inventive concept. Nor does the presence of a mathematical formula dictate otherwise. Claims that are directed to a non-abstract idea are not rendered abstract simply because they use a mathematical formula. But the converse is also true: A claim directed to an abstract idea does not automatically become eligible merely by adding a mathematical formula.
The opinion notes that in BASCOM, the patent owner alleged that an inventive concept can be found in the ordered combination of claim limitations that transform the abstract idea of filtering content into a particular, practical application of that abstract idea. That allegation was found to be sufficient to survive a motion to dismiss similar to the motion at issue here, where all facts had to be construed in the patent owner’s favor. However, RecogniCorp has not alleged a particularized application of encoding and decoding image data. In fact, claim 1 does not even require a computer; the invention can be practiced verbally or with a telephone.
The panel first addresses whether the invention of the ’724, ’725, and ’424 patents was subject to a sale or offer for sale prior to the critical date. Helsinn admits that the Supply and Purchase Agreement was binding as of its effective date, April 6, 2001, and that, if the FDA approved the 0.25 mg dose and/or the 0.75 mg dose of palonosetron, the agreement obligated Helsinn to sell and MGI to purchase those products. The fact that an agreement covered one party’s requirements as opposed to a specified quantity does not prevent application of the on-sale bar.
The panel also rejects Helsinn’s argument that at the critical date it was uncertain whether the FDA would approve the 0.25 mg dose, pointing out that absence of FDA approval before the critical date does not prevent a sale or offer for sale from triggering the on-sale bar.
Helsinn also argues that, even if the agreement of sale for the 0.25 mg dose could be an invalidating sale, the agreement was uncertain because it covered the 0.25 mg dose, the 0.75 mg dose, and both doses. However, the panel rules that even if the agreement had given the purchaser the option of choosing between the two doses, there would still be a binding agreement.
The panel next turns to the issue of whether the AIA changed the meaning of the on-sale bar under § 102 so that there was no qualifying sale as to the ’219 patent. Before the AIA, § 102(b) barred the patentability of an invention that was “patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent.” By enacting the AIA, Congress amended § 102 to bar the patentability of an “invention that was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” 35 U.S.C. § 102(a)(1). Helsinn argued that the “otherwise available to the public” phrase changed the law, which now does not encompass secret sales and requires that a sale make the invention available to the public in order to trigger application of the on-sale bar.
Apart from the additional statutory language, this argument primarily relies on floor statements made by individual members of Congress that dealt more with public use, which is not now before the Circuit. The panel notes that as to offers for sale, requiring public disclosure of the details of the claimed invention as a condition of the on-sale bar “would work a foundational change in the theory of the statutory on-sale bar.” It is sufficient that, if the existence of the sale is public, the details of the invention need not be publicly disclosed.
Finally, the panel addresses the issue of whether, under the Supreme Court’s Pfaff v. Wells case, the invention was ready for patenting as of the critical date. The panel rejects the holding of the district court and the argument of Helsinn that in order for the invention to be ready for patenting, it had to meet the FDA standard, which requires finalized reports with fully analyzed results from successful Phase III trials. The panel finds that before the critical date of January 30, 2002, it was established that the patented invention would work for its intended purpose.


This case is before the Authority on a negotiability appeal under § 7105(a)(2)(E) of the Federal Service Labor‑Management Relations Statute (the Statute). Before the Authority is one proposal with three components. The Agency filed a statement of position as well as an amended statement of position. The Union filed a response as well as an amended response. Additionally, the Agency filed a reply to the Union’s amended response.
We must decide whether the proposal is: (1) contrary to § 7131 of the Statute; (2) contrary to 5 C.F.R. § 550.162 or other government-wide rules or regulations; or (3) inconsistent with an Agency regulation for which there is a compelling need. We also address the Agency’s argument that the proposal is outside of its duty to bargain because the proposal is covered by a tentative agreement.
First, the Agency alleges that the mandatory language of § 7131 of the Statute granting official time for certain purposes precludes the Agency from authorizing administrative leave for negotiations. Because § 7131 of the Statute does not prohibit the authorization of administrative leave for negotiations, the proposal is not contrary to § 7131 of the Statute.
Second, the Agency argues that the proposal’s requirement that the Agency authorize administrative leave is contrary to a government-wide rule or regulation. Insofar as the Agency’s contention relies on the Federal Personnel Manual (FPM) – not a binding government-wide rule or regulation – this contention must fail. Additionally, the Agency argues that the proposal is contrary to 5 C.F.R. § 550.162 because this regulation does not provide an exception for official time. Since 5 C.F.R. § 550.162 does not address the subject of the proposal, the Agency’s argument does not demonstrate that the proposal is contrary to this regulation.
Third, the Agency argues that the proposal is inconsistent with an Agency regulation for which there is a compelling need. Because the Agency does not demonstrate that there is a compelling need for the Agency regulation in question, we reject this contention.
Finally, the Agency contends that the proposal is outside of its duty to bargain because tentative ground rules cover the issue of the proposal. However, because the parties have yet to resolve the matter of the ground rules by bargaining and reaching an executed agreement, this argument does not provide a basis for finding the proposal outside the duty to bargain.
Consequently, we find that the proposal is negotiable.
The Agency alleges that we should dismiss the Union’s arguments concerning 5 C.F.R. § 610.102 and § 7131 of the Statute as bare assertions. The Authority will not consider a position that a party does not support. However, as the Agency acknowledges, the Union presents arguments and cites to authority, including Authority precedent, to support its positions. As such, we will consider the Union’s arguments.
The AUO computation period for Union CBA team members, who are in positions eligible to receive AUO will be 26 pay periods during CBA negotiation periods.
CBA team members will be permitted to work additional AUO hours at their duty stations between bargaining sessions when AUO certified work is available.
AUO-eligible employees involved in the negotiations from twelve pay periods to twenty-six pay periods. The Union clarified that a “computation period” is a period of time during which the Agency makes the determinations of the continuing eligibility for and appropriate rate of AUO pay.
The parties agree that Ground Rules, Section B (Section B) of the proposal means that the Agency will permit AUO-certified employees on the negotiation team to work additional AUO at their duty stations when it is available and when those employees are not in negotiations. The Union defined “additional AUO hours” as AUO hours in addition to an employee’s regular shift time as AUO work arises. The Union also explained that Section B reflects the Agency’s current practice. The parties also agree that this section of the proposal, as understood by the parties, does not present any negotiability issues.
In arguing that the proposal is nonnegotiable, the Agency presents arguments that address specific portions of the proposal. Although considering the proposal as a whole, we address individual components of the proposal when the Agency raises arguments specific to that component.
1. Section A.1 of the proposal is not contrary to § 7131(a) of the Statute.
The Agency argues that Section A.1 of the proposal – specifically the portion classifying official time as administrative leave – is contrary to the Statute because § 7131(a) of the Statute mandates the authorization of official time to employee representatives at negotiations. Under § 7131(a) of the Statute, “any employee representing an exclusive representative in the negotiation of a collective[-]bargaining agreement under this chapter shall be authorized official time for such purposes . . . during the time the employee otherwise would be in a duty status.” Citing 5 C.F.R. § 2635.705, the Agency first notes that official time is distinct from administrative leave; the Union does not dispute this. The Agency then argues that the use of “shall” in § 7131 of the Statute means that the Agency only has authority to grant official time for time spent in negotiations, and it would be contrary to the Statute to grant administrative leave for such time. However, although § 7131 of the Statute requires the authorization of official time for negotiations, it does not prohibit the Agency from authorizing administrative leave for negotiations or other union activities. Consequently, the Agency does not demonstrate that the proposal is contrary to § 7131 of the Statute.
2. Section A.1 of the proposal is not contrary to a government-wide rule or regulation.
i. Section A.1 of the proposal is not nonnegotiable as contrary to the FPM.
The Agency argues that Section A.1 of the proposal would require the authorization of “[s]ignificant and [r]ecurrent” amounts of administrative leave, which is contrary to government-wide regulations. However, for this contention, the Agency relies exclusively on precedent – Authority decisions and opinions of the Comptroller General – concerning the FPM. As the Agency concedes, the FPM is no longer a binding government-wide regulation. As such, the Agency does not cite to any binding government-wide regulation to support this argument. Consequently, this argument does not demonstrate that the proposal is contrary to a government-wide rule or regulation.
AUO-qualifying duties when not in negotiations, the premise of this argument is faulty, and it provides no basis for finding the proposal nonnegotiable. As a result, we reject this argument.
ii. Section A.1 is not contrary to 5 C.F.R. § 550.162.
The Agency contends that Section A.1 of the proposal is contrary to a government-wide rule or regulation because 5 C.F.R. § 550.162 does not provide an exception for official time. With regard to AUO, heads of agencies may, pursuant to regulations prescribed by the Office of Personnel Management (OPM) at 5 C.F.R. §§ 550.151 to 550.164 and consistent with law, authorize what the regulations refer to as “premium pay” on an annual basis for an employee in a position for which the hours of duty cannot be controlled administratively and which requires substantial amounts of irregular, unscheduled overtime. While the Agency’s arguments focus on 5 C.F.R. § 550.162, entitled “[p]ayment provisions,” this particular section must be read in concert with §§ 550.141-550.164 because these sections together govern AUO and how it is to be paid.
[a]n agency may continue to pay an employee [AUO] . . . (1) [f]or a period of not more than [ten] consecutive prescribed workdays on temporary assignment to other duties in which conditions do not warrant payment of [AUO] on an annual basis, and for a total of not more than [thirty] workdays . . . while on such a temporary assignment[; and] (2) [f]or an aggregate period of not more than [sixty] prescribed workdays on temporary assignment to a formally approved program for advanced training duty directly related to duties for which [AUO] on an annual basis is payable.
This regulation also provides that “[a]n agency shall continue to pay an employee [AUO] . . . while he is on leave with pay during a period in which [AUO] is payable.” The Agency argues that the exceptions in 5 C.F.R. § 550.162 do not include official time. The Agency continues that, outside of the exceptions in 5 C.F.R. § 550.162, “agencies must immediately discontinue [the] payment of AUO when an employee is not performing qualifying duties or sufficient amounts of [AUO].” Therefore, the Agency concludes, there is no authorization for continuing AUO pay during official time, and, as a result, any such unauthorized pay is contrary to a government-wide regulation.
directly concern[s] the actual payment of premium pay when employees are on temporary assignments and leave with pay. They do not concern the determination of future eligibility for, and appropriate rates of, such pay. As the regulatory provisions relied upon by the [a]gency concern not computation but actual payment of premium pay under AUO, the [a]gency’s assertion that a conflict exists cannot be sustained.
The analysis in NBPC is equally applicable here. The Agency has discretion as to, and Section A1. of the proposal concerns, the calculation of AUO hours in order to determine whether an employee is performing the requisite type and amount of overtime to be AUO certified and to receive AUO pay. However, 5 C.F.R § 550.162 deals with the continuation of AUO pay, not the computation of eligibility or the amount of that pay. In short, the exceptions in 5 C.F.R § 550.162 do not deal with the computation of AUO hours, the subject of the proposal. Therefore, there is no conflict between 5 C.F.R. § 550.162 and the proposal.
in determining the number of weeks in a review period, there is no authority to reduce the number of weeks by subtracting hours of paid leave (such as annual leave or sick leave), hours of unpaid leave (such as hours of leave without pay, including leave without pay under the . . . [Family and Medical Leave Act of 1993], or hours during which an employee is suspended without pay), hours of excused absence with pay, hours or days during which an employee has been detailed to other duties for which employees seldom or never perform irregular or occasional overtime work, or hours in a training status.
With one inapplicable exception, the guidance does not state that agencies have no authority to exclude entire days, as opposed to hours, from the computation of AUO certification and AUO pay. According to the Union, negotiations last for weeks at a time, indicating that Section A.1 intends to exclude days of negotiations, not hours. Furthermore, the guidance does not address the subject of the proposal, the exclusion of official time from the computation of AUO certification and AUO pay. In light of this analysis of the guidance, we decline to reconsider NBPC.
Consequently, the Agency’s arguments do not demonstrate that Section A.1 of the proposal is contrary to a government-wide rule or regulation.
3. Section A.2 of the proposal is not inconsistent with an Agency regulation for which there is a compelling need.
The Agency alleges that Section A.2 of the proposal is inconsistent with an Agency regulation – Administrative Manual (AM) 1.3.103 concerning the calculation of an employee’s AUO rate – for which there is a compelling need. To establish that a conflict with an agency rule or regulation relieves an agency of its duty to bargain, the agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need within the meaning of § 2424.50 of the Authority’s Regulations. As relevant here, a compelling need exists for an agency rule or regulation when the agency demonstrates that the rule or regulation is necessary to ensure the maintenance of basic merit principles.
neither the governing statute nor the related OPM regulations . . . requires absolute equity between . . . similarly situated employees within an agency. Rather, the law and regulations leave agencies with discretion to decide how to arrive at individual AUO [premiums]. To the extent that an agency has discretion respecting a matter sought to be bargained affecting conditions of employment . . . and where the grant of discretion is not sole and exclusive, the matter is within the duty to bargain.
Consequently, the Agency has failed to demonstrate that Section A.2 of the proposal is contrary to an Agency rule or regulation for which there is a compelling need.
4. The proposal is not outside of the duty to bargain as covered by a tentative agreement.
The Agency argues that the proposal is outside of its duty to bargain because the “tentative ground rules” between the parties incorporate both “existing practice[s]” – including the Agency’s computation of AUO – and the parties’ previous agreement, which in turn incorporates by reference the AM – including Agency policy governing AUO calculations. Under the Authority’s covered-by doctrine, a party is not required to bargain over terms and conditions of employment that have already been resolved by bargaining. However, for the covered-by doctrine to apply, the subject matter of the disputed proposals must be either “expressly contained in” the parties’ collective-bargaining agreement, or “inseparably bound up with,” and thus “plainly an aspect of” a subject expressly covered by the agreement. Here, however, the Agency concedes that its argument relies on ground rules that are themselves “currently at issue” and that the parties have only “tentatively agreed upon.” As such, the parties have yet to resolve the matter of the ground rules by bargaining, and there is no executed agreement. Therefore, the Agency has failed to demonstrate that the covered-by doctrine renders the proposal outside of the duty to bargain.
In conclusion, we find that the Agency has not demonstrated that the proposal is nonnegotiable. In light of this determination, we find it unnecessary to address the Union’s request to sever the individual sections of this proposal.
We order the Agency to bargain, upon request, over the proposal.
 Record of Post-Petition Conference at 1 (Record); Agency’s Amended Statement at 1 (Amended Statement).
 Agency’s Reply (Reply) at 5 n.4 (“As the Union has not supported its arguments, they should be dismissed as ‘bare assertions’ pursuant to Authority precedent.”); id. at 11-12 (“Notably, the Union once again fails to cite any authority to support its argument, and therefore its position should be dismissed as a bare assertion.”).
 AFGE, Local 723, 66 FLRA 639, 644 (2012); AFGE, Local 221, 64 FLRA 1153, 1158 n.7 (2010).
 Reply at 5 (“To support that argument, [the Union] cite[s] to certain [Authority] rulings.”).
 Union’s Response to Amended Statement (Response) at 4 (citing Nat’l Border Patrol Council, AFGE, AFL-CIO, 23 FLRA 106, 109 (1986) (NBPC)); id. at 6 (citing 5 U.S.C. § 7131).
 Compare id. at 3, with Order at 1-2 (rescinding modification).
 Petition, Attach. 2 at 1.
 Record at 2-3; Amended Statement at 4.
 Record at 2; Amended Statement at 4.
 Id. at 4 (internal quotation marks omitted).
 Amended Statement at 15-16; Response at 10; Reply at 17.
 Cf. Am. Fed’n of Teachers, Indian Educators Fed’n, Local 4524, 63 FLRA 585, 586 (2009) (finding no conflict where plain language of a regulation did not conflict with the proposal); AFGE, Locals 3807 & 3824, 55 FLRA 1, 2 (1998) (same).
 Id. at 12 (“The Agency acknowledges that the FPM and its rules regarding excused absences are no longer binding.”).
 De Laet v. OPM, 70 M.S.P.R. 390, 393 n.6 (1996) (referencing the sunset of the FPM on Dec. 31, 1994).
 NBPC, 23 FLRA at 106-07.
 5 C.F.R. § 550.153(a) (“The requirement in [5 C.F.R.] § 550.151 that a position be one in which the hours of duty cannot be controlled administratively is inherent in the nature of such a position.”).
 Id. § 550.153(b) (“In order to satisfactorily discharge the duties of a position referred to in [5 C.F.R.] § 550.151, an employee is required to perform . . . [a] substantial amount of irregular or occasional overtime work[, which] means an average of at least [three] hours a week of that overtime.”).
 NBPC, 23 FLRA at 109.
 Record at 2 (“Section [A.1] means that the Agency must not compute . . . [AUO] in a way that would result in” a reduction of AUO pay or “ineligibility to receive AUO, thus becoming decertified.”).
 Reply at 11 (emphasis removed) (citing Compensation Policy Memoranda (CPM) 97-5).
 Id. at 11, n.10 (emphasis removed) (quoting CPM 97-5, § VII, Finding 4).
 AFGE, SSA Gen. Comm., 68 FLRA 407, 408 (2015) (AFGE, SSA); AFGE, Local 3824, 52 FLRA 332, 336 (1996).
 5 C.F.R. § 2424.50; see also AFGE, AFL-CIO, Local 3804, 7 FLRA 217, 219 (1981).
 5 C.F.R. § 2635.101(b)(8) (“Employees shall act impartially and not give preferential treatment to any private organization or individual.”); id. § 2635.101(b)(14) (“Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part.”).
 AFGE, AFL-CIO, Nat’l Border Patrol Council, 23 FLRA 146, 149 (1986).
 NATCA, AFL-CIO, 62 FLRA 174, 176 (2000); U.S. Dep’t of HHS, SSA, Balt., Md., 47 FLRA 1004, 1017-18 (1993) (SSA).
 SSA, 47 FLRA at 1018; see also NTEU, 68 FLRA 334, 338 (2015) (inapplicability of covered-by doctrine).
 AFGE, SSA, 68 FLRA at 409; AFGE, Local 1164, 65 FLRA 836, 840 n.3 (2011).


text:
Myrick, David F. Railroads of Nevada and Eastern California. Volume One - The Northern Roads. Berkeley. Howell-North Books. 1963. 453 pps. 4to. Hardcover. Second edition. Illustrated. Important reference work. Material present in rear pocket. Fine copy.
Myrick, David. Railroads of Nevada and Eastern California. Volume I - The Northern Roads. Berkeley. Howell-North. 1962. 4to. Hardcover. Second edition. Illustrated. Maps in rear pocket. Fine copy in very good (light shelf wear) dust jacket (in mylar).
Navarra, John. Supertrains. Photo available. Garden City. Doubleday and Co. 1976. 80 pps. Octavo. Hardcover. Reprint. Illustrated. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Nave, Harald. Alaska-Feurerland. Reise Und Bahnerlebnisse. Lausanne. Orell Fussli. 1986. 160 pps. 4to. Hardcover. First edition. Illustrated in color and black & white. Fine copy in near fine dust jacket (in mylar).
Nelligan, Tom. Trains of the Northeast Corridor. Photo available. New York. Quadrant Press. 1982. 96 pps. 4to. Hardcover. First edition. Illustrated. Important reference work. Fine copy.
Nelligan, Tom. Via Rail Canada. The First Five Years. Photo available. Park Forest. PTJ Pub. 1982. 80 pps. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Nelson, Tom A. (ed). 50 Years of Railroading in Southern California. 1936-1986 (Plus Updates Through 1996). Photo available. San Marino. Pacific Railroad Society. 2001. 204 pps. 4to. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Nelson, Tom. Pacific Railroad Society. 40th Anniversary and American Revolution Bicentennial Year Compendium. With 1962-1975 Railroad Chronology. Los Angeles. Pacific Railroad Soc. 1977. 73 pps. 4to. Pictorial soft cover. First edition. Illustrated. Fine copy.
Neve, Eric. East Coast from Kings Cross. Photo available. London. Ian Allan. 1983. 112 pps. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Nevins, Frank J. A Yankee Dared. A Romance of Railroads. Chicago. The O'Sullivan Publishing House. 1933. 405 pps. Octavo. Hardcover. First edition. Fine copy.
Nevins, Frank J. A Yankee Dared. A Romance of Railroads. Chicago. The O'Sullivan Publishing House. 1933. 405 pps. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy.
Noble, Joseph. From Cab to Caboose. Fifty Years of Railroading. Photo available. Norman. University of Oklahoma Press. 1964. 205 pps. Octavo. Hardcover. First edition. Illustrated. Fine (owner name on end paper) copy.
Noble, Tom. Diesels on the Regions Scottish Region. Great Britain. Oxford Publishing Co. 1984. 4to. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Nock, O.S. 60 Years of West Coast Express Running. London. Ian Allan Ltd. 1976. 264 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in dust jacket (in mylar).
Nock, O.S. Great Western 'Saint' Class 4-6-0. Classic Locomotives. Photo available. Cambridge. Patrick Stephens. 1983. 119 pps. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Nock, O.S. Main Lines Across the Border. Photo available. London. Ian Allan. 1982. Octavo. Hardcover. Reprint. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Nock, O.S. Railways at the Turn of the Century. 1895-1905. London. Macmillan Company. 1969. 186 pps. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
Nock, O.S. The Pocket Encyclopedia of British Steam Locomotives. In Colour. London. Blandford Press. 1973. 192 pps. Octavo. Hardcover. Reprint. Illustrated in color and black & white. Fine copy (owner blind stamp on end paper) in fine dust jacket (in mylar).
Nock, O.S. The Railways of Britain. Past and Present. London. B.T. Batsford, Ltd. 1947. 120 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine dust jacket (in mylar).

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After a federal jury “convicted Yennier Capote Gonzalez of five counts of health care fraud in violation of 18 U.S. Code § 1347, one count of money laundering in violation of 18 U.S. Code § 1957, and two counts of aggravated identity theft in violation of 18 U.S. Code § 1028A” and he was sentenced him to “67 months" in prison, he appealed his conviction to the U.S. Court of Appeals for the 6th Circuit. U.S. v. Gonzalez, 2014 WL 1257940 (2014).
As the Court of Appeals noted at the beginning of its opinion, “Gonzalez appeal[ed] his convictions and sentence on many grounds, most of which are meritless.” U.S. v. Gonzalez, supra. This post is primarily concerned with one of his arguments on appeal, but also notes the outcome of another, which proved more successful.
He bought a tract of land at. . . . 179 Buck Branch Lane, which included a run-down barn. Gonzalez later defaulted on the [mortgage for that property, after which] the lender foreclosed and sold [it] at auction in June 2010. . . .
That same month . . . Gonzalez submitted a Tennessee corporate charter for Gainesboro Ultimate Med Service Corporation, which listed Gainesboro Med's mailing address as 179 Buck Branch Lane. The charter also listed the same address for Gonzalez, and listed him as Gainesboro Med's president.
On July 1, Gainesboro Med applied for a national provider identification (NPI) number, which are unique identifiers issued by the Centers for Medicare and Medicaid Services to healthcare providers such as doctors and medical clinics. This application listed Gainesboro Med's address at 179 Buck Branch Lane and its authorized official as Gonzalez. Weeks later, Gonzalez obtained a business license from Jackson County, Tennessee, to operate Gainesboro Med as an `online medical billing’ company. Once again, Gainesboro Med's listed address was 179 Buck Branch Lane.
On July 13, Manuel Trujillo sent a text message to cellphone number (305) 420-8152. The text contained only the name `Tidence Prince, M.D.’ and an NPI number. Two days later, Trujillo sent a series of text messages to the same phone number that contained the names Orlando Martinez, Jorge Valdez, Monica Rodriguez, and Rosemary Mir.
On July 16, Gonzalez opened a business-checking account for Gainesboro Med with Regions Bank in Cookeville, Tennessee. He listed Gainesboro Med's address as 179 Buck Branch Lane and made himself the account's only authorized signatory. Gonzalez also listed his phone number as (305) 420–8152 -- the number for the cellphone that had received the text messages on July 13 and 15.
Over the next few weeks, Gainesboro Med submitted several online claims to two . . . insurance companies, Wellpoint and Cigna. Gainesboro Med sought reimbursement for injections that were purportedly administered to the persons listed in the July 15 text messages: Orlando Martinez, Jorge Valdez, Monica Rodriguez, and Rosemary Mir. Each claim included Dr. Prince's NPI number and listed him as the physician who administered the injections. In fact, however, most of the patients were fictitious and none of the injections were performed.
On August 12, Cigna mailed to 179 Buck Branch Lane a $38,116 check payable to Gainesboro Med for medical services purportedly provided to Rosemary Mir and Monica Rodriguez. Five days later, Gainesboro Med deposited that check into its checking account at Regions Bank in Cookesville, Tennessee. The check constituted essentially all of the funds in Gainesboro Med's account.
Two days later, Gonzalez (the account's only signatory) wrote a check to Manuel Trujillo for $2000 and another check in the same amount to himself, which he deposited in his personal account. On August 23, Gonzalez visited a Regions Bank in Miami and obtained a $14,400 cashier's check, payable to his landlord, drawn from the Cigna funds in the Gainesboro account. He also tried to wire Trujillo the remaining $17,000 from the Regions account, but the bank refused because the funds had been deposited too recently.
Meanwhile, Cigna reported Gainesboro Med as a suspicious provider to Special Agent Robert Turner at the Department of Health and Human Services. Turner investigated, first by visiting 179 Buck Branch Lane. There he found only a barn and a mailbox, which contained mail addressed to Gainesboro Med.
Turner also learned that the patients whom Gainesboro Med supposedly had treated resided at 140 Lonesome Point Lane. He drove there and found only a mailbox and the unfinished house, which consisted of a foundation, walls, and a cover for a roof. The mailbox contained mail from Wellpoint and Cigna.
On August 24, Turner called Carol Sawaya, a manager at Region Bank's Miami office, and explained that he was investigating Gainesboro Med and Gonzalez. With Sawaya's assistance, Turner then coordinated a plan to arrest Gonzalez at the bank. The next day, a Region's employee called Gonzalez and told him his $17,000 wire transfer had been approved and that he needed to come into the bank. Gonzalez did so and gave Sawaya his driver's license and bank card. Then Turner arrested him.
U.S. v. Gonzalez, supra. The press release you can find here gives a few more details about the prosecution.
4th Amendment right to be free from unreasonable searches when it obtained the July 13 and 15 text messages from the phone company without a warrant. The phone number that received the messages was the same one that Gonzalez had listed as his contact number when he opened a Regions Bank account for Gainesboro Med. In fact, . . . that phone number was assigned to an account registered to someone else.
The [U.S. District Court Judge who presided over his trial] denied Gonzalez's motion to exclude on the grounds that he lacked standing to challenge the admission of text messages retrieved from a phone account that was registered to someone else.
[t]o establish standing for the purposes of the 4th Amendment, Gonzalez must show, first, that `he had an actual, subjective expectation of privacy’ in the text messages; and second, that his expectation was `objectively reasonable.’ U.S. v. Smith, 263 F.3d 571 (U.S. Court of Appeals for the 6th Circuit 2001). Reasonable expectations of privacy arise from `a source outside of the 4th Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ U.S. v. Jones, 132 S.Ct. 945 (2012). . . .
Gonzalez has made virtually no effort to carry his burden here. He offers merely the conclusory assertion that `[c]learly [he] had a legitimate expectation of privacy in his telephone and telephone records.’ But the phone account in fact was not `his,’ and he made no effort to show that he exercised any control over the account (which belonged to someone else) from which the text messages were obtained. Thus, whatever the particular standard might be for establishing standing for purposes of contesting the government's retrieval of records from a cellphone account, Gonzalez has not met it here.
that he `knew that the means of identification at issue belonged to another person.’ Flores–Figueroa v. U.S., 556 U.S. 646(2009). Here, the means of identification at issue was Dr. Prince's NPI number. Thus, for Gonzalez's conviction to stand, the government must have proved that Gonzalez knew that Prince was a real person.
Thus, in essence, the government argues that Gonzalez's own experience in obtaining an NPI number for Gainesboro Med shows Gonzalez knew that Dr. Prince could have obtained an NPI number only if he was a real person. But that inference is hardly compelling. True, the government presented evidence that the IRS `validates’ NPI numbers for `organizations’ every six months.
But the government did not present any proofs that Gonzalez was aware of those procedures. More to the point, the government did not present evidence that the same or similar procedures existed for validating NPI numbers assigned to doctors -- much less that Gonzalez was aware of those procedures. So far as Gonzalez knew -- and indeed so far as the record shows here -- the possibility remains that a fraudster could obtain an NPI number, at least for a while, for a doctor who is fictitious.
considerably weaker than the proofs found sufficient in cases involving aggravated identity theft. In one case, the defendant possessed the victim's birth certificate and credit reports, in addition to the Social Security number that was the means of identification used there. U.S. v. Valerio, 676 F.3d 237 (U.S. Court of Appeals for the 1st Circuit 2012).
In another case, the defendants possessed credit-card numbers they were told `had to be used within 24 hours, which the jury could view as notice that the account numbers belonged to the persons listed and might be reported stolen after 24 hours.’ U.S. v. Shifu Lin, 508 F. App'x 398 (U.S. Court of Appeals for the 6th Circuit 2012).
And other courts have held that `a defendant's repeated and successful testing of the authenticity of a victim's identifying information prior to the crime at issue is powerful circumstantial evidence that the defendant knew the identifying information belonged to a real person as opposed to a fictitious one.’ U.S. v. Doe, 661 F.3d 550 (U.S. Court of Appeals for the 11th Circuit 2011).
We have nothing of the sort here. What we have, by the government's own account, is merely that Gonzalez incorporated Gainesboro Med (itself a shell corporation) in order to obtain an NPI number for it. Even viewing the evidence in the light most favorable to the government, that fact would not allow a jury to infer, beyond a reasonable doubt, that Gonzalez knew Prince was a real person. We therefore reverse Gonzalez's conviction for aggravated identity theft.
Since it reversed that conviction, the Court of Appeals remanded the case for resentencing. U.S. v. Gonzalez, supra.