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ADF International is launched as a global partner of Alliance Defending Freedom.
Special consultative status is granted at the United Nations, allowing ADF International lawyers the status to engage the UN process in New York and around the world, as well as advocate for language affirming religious freedom, the sanctity of life, and marriage and family.
ADF International receives accreditation from the European Parliament and European Commission.
ADF International establishes its Latin American presence in Mexico City.
Lautsi v. Italy (ECtHR): In March, ADF International successfully intervenes on behalf of 33 Members of the European Parliament from 12 different European states. The intervention is instrumental in securing a major victory on behalf of Italy and affirming the right of its people to display religious symbols in public places, including classrooms.
ADF International opens its headquarters in Vienna, Austria.
The first time an anti-conversion law (legally restricting people from converting to Christianity)—in place in six Indian states since 1967—is struck down in India.
Boissoin v. Lund: ADF International allies successfully defend Canadian pastor Stephen Boissoin after he was reported for ‘hate speech’ simply for writing an opinion editorial supporting marriage. A Canadian court overturns a decision of the Human Rights Commission against Boissoin and Alberta’s highest court upholds his acquittal.
In November, ADF International receives the Scandinavian Human Dignity Award for ‘exceptional contributions to defending human dignity’ from the Scandinavian Human Rights Committee.
Eweida v. United Kingdom (ECtHR): In January, ADF International is instrumental in a historic win protecting religious freedom.
ADF International publishes The Global Human Rights Landscape.
ADF International and its alliance partners in India defend Christians in 43 cases in their newly established legal assistance centres, launched in response to increased violent attacks against Christians.
ADF International is granted accreditation by the Organization of American States (OAS) in April, enabling it to provide a significant voice on law and policy throughout Latin America. ADF International is the first organization of its kind in the world to hold accredited status with the OAS and have a full-time presence at its headquarters in Washington, DC.
Magyar Keresztény Mennonita Egyház and Others v. Hungary (ECtHR): In April, the ECtHR holds that a Hungarian law that removes the legal status of dozens of Christian churches is in violation of the European Convention on Human Rights—keeping the doors open for missionaries and church planters to spread the Gospel across Europe.
Gross v. Switzerland (ECtHR): In November, the Grand Chamber of the European Court of Human Rights dismisses a case designed to liberalize assisted suicide laws in Switzerland. ADF International presented key legal arguments to both the Chamber and Grand Chamber.
Dimitrova v. Bulgaria (ECtHR): In February, ADF International and its allies successfully defend Petya Dimitrova at the ECtHR after her home church was raided by police. The Court invalidated efforts by the Bulgarian government to close down her home church and affirmed her freedom of thought, conscience, and religion.
In March, ADF International opens an office in Brussels, Belgium, in order to better engage at the European Union.
Annen v. Germany (ECtHR): In November, working with its allies, ADF International played a significant role in the successful defense of Klaus Annen, a pro-life advocate, thereby securing greater freedom of expression throughout Europe.
In September, ADF International launches an office in Geneva, Switzerland, allowing greater involvement at the United Nations Human Rights Council.
ADF International opens an office in Strasbourg, France, in order to effectively engage at the European Court of Human Rights and be a resource at the Council of Europe.
ADF International’s direct advocacy efforts at the United Nations, the European Parliament, the Council of Europe, the United States, the United Kingdom, and France lead to recognition of ISIS’ atrocities against Christians in the Middle East as genocide. ADF International also hosts several major events throughout Europe promoting its new book, Never Again—which documents the findings of ADF International teams who have visited Syria and Iraq to interview survivors of ISIS persecution.
In FG v. Sweden (ECtHR), the Grand Chamber ruled that Sweden must not deport an Iranian Christian convert from Islam, as he would face severe persecution for his faith if he returned to Iran.
ADF International releases the second edition of Censored (Kairos Publications: Vienna), a work focusing on threats to free speech across Europe.
ADF International releases The ‘Conscience of Europe?’—a publication focusing on the European Court of Human Rights’ jurisprudence on the issues of family, the sanctity of human life, and religious freedom.
ADF International launches the Affirming Dignity campaign in multiple countries throughout Europe to expose the slippery slope of euthanasia laws.
ADF International opens an office in London, United Kingdom, to better engage with crucial developments of law, policy, and media in one of the most influential cities in the world.

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The Washington Court of Appeals recently decided the case of Stonewood Design, Inc. v. Heritage Homes of Wa dba Infinity Homes, et al, 164 Wn. App. 1034 (2011) (published on January 17, 2012). The court's decision (referenced herein as Stonewood v. Infinity) provides clarity to Washington's statute governing release of lien bonds, and clarifies the Court of Appeal's holding in an earlier case. This article discusses Stonewood v. Infinity, and discusses the language of Oregon's release of lien bond statute in comparison to Washington's release of lien bond statute.
In Stonewood v. Infinity, the general contractor Infinity contracted with Stonewood for Stonewood to install tile in a home. Stonewood performed the work and billed Infinity in an amount slightly over $30,000. Infinity withheld approximately $9,000 from Stonewood, claiming that some of the tiles were chipped and needed to be replaced.
The parties' attempts to resolve the dispute were unsuccessful. Stonewood filed a construction lien for the contract balance and then sued to foreclose the lien. Stonewood's lawsuit included a claim against Infinity for breach of contract and a claim against Stonewood's contractor's registration bond.
The defendant homeowners posted a release of lien bond under RCW 60.04.161 and obtained release of the Stonewood lien.
In the lawsuit, Infinity contested Stonewood's claim for foreclosure on the release of lien bond, and asserted a counterclaim against Stonewood for Infinity's alleged costs to repair the tile work.
At trial, the jury awarded damages to Stonewood for the approximate $9,000 sum withheld by Infinity, and rejected Infinity's claim for offset.
In post-trial proceedings, Infinity argued that Stonewood's lien was invalid. The court rejected that argument and held that Stonewood had "proved the facts necessary to execute upon the release of lien bond." The court entered judgment in favor of Stonewood for the amount of the jury verdict.
The court's judgment provided in part that Stonewood was "entitled to execute" on the release of lien bond, as well as on Infinity's contractor's registration bond because Stonewood "prevailed in its breach of contract action against Infinity."
Infinity's primary argument on appeal was that Stonewood had not obtained a "judgment upon the lien" under the language of RCW 60.04.161 and therefore the trial court had erred in allowing Stonewood to execute on the release of lien bond.
The relevant language of RCW 60.04.161 provides that "[T]he condition of the bond shall be to guarantee payment of any judgment upon the lien in favor of the lien claimant entered in any action to recover the amount claimed in a claim of lien, or on the claim asserted in the claim of lien." (Emphasis added).
On appeal, Infinity placed much reliance on the Court of Appeals' decision in DBM Consulting Engineers, Inc. v. United States Fidelity & Guaranty Co., 142 Wn. App. 35 (2007), in which the court held that a release of lien bond guaranteed payment only where there is a "judgment upon the lien" not merely a judgment on the underlying claim.
The court found that the DBM case was distinguishable. In DBM, the lien claimant had obtained a judgment against the owner for breach of contract, but had not pursued its claim for foreclosure of the construction lien that it had asserted. Instead, the lien claimant filed a second lawsuit naming the bonding company and seeking payment from the release of lien bond that had been posted. The parties had not litigated the validity of the construction lien.
Infinity argued on appeal that since the trial court's order did not specifically state that Stonewood's construction lien was foreclosed, the order did not obligate the surety to pay the lien under the release of lien bond. The court held that Infinity's argument "elevates form over substance", and stated further that "DBM does not impose vocabulary requirements for judgments." The court noted that what is required under the DBM case is that the construction lien must be litigated before execution on a release of lien bond is appropriate. The court reasoned that litigating the validity of the underlying lien preserves the link between the lien and the release of lien bond.
In affirming the trial court, the Court of Appeals held that because Stonewood had established the validity and enforceability of its lien, the trial court was correct in authorizing execution on the release of lien bond.
Oregon's statute regarding release of lien bonds, ORS 87.076 (1), requires that a release of bond shall provide for payment of the claim and all costs and attorney fees that are awarded against the land and improvement "on account of the lien." Although there are no reported appellate cases in Oregon construing this language, it is reasonable to conclude that such language requires, as does Washington's statute, that the validity and enforceability of the construction lien be established in order for there to be execution on the release of lien bond.
It is also reasonable to conclude that an Oregon appellate court would look to the substance of the trial court's decision in a construction lien case where other claims have been adjudicated, and as with the Stonewood v. Infinity court, not "impose vocabulary requirements for judgments." However, in light of the lack of appellate court precedent in Oregon on this issue, an Oregon lien claimant should include language in the judgment and decree of foreclosure that specifies in substance that the lien was found to be valid and enforceable, and that the judgment and decree is on account of the lien.

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Students from a variety of academic backgrounds can expand their speaking, writing and critical thinking skills by questioning how arts of the past illuminate contemporary ideas. Through interactive discourse students investigate historical convention or controversy, ethical dimensions and the spirit of invention and expression across cultures.
Students will engage with a variety of art historical topics from ancient art to contemporary art. They will develop an understanding of materials, concepts, cultures and types of criticism that are relevant to the production, display and audience reception of art across time and culture. Through integrated research and hands-on making of art, students connect sensory perceptions and technical innovations of the past to current artistic expression.
Students will enjoy a variety of experiences in the classroom including electronic venues, visits to local galleries and museums or international travel. Students will develop a personal aesthetic viewpoint and formulate valuing positions about artworks that arise from social circumstances in diverse global communities, arts organizations and media culture.
Students with a minor in art history bring expanded visual literacy, cultural awareness and research and writing skills to their careers. Critical thinking, creativity and experiential learning provide them with multiple perspectives on global aesthetics and visual communication of human meaning.
AHS 210 – Ancient to Byzantine Art- 2 cr.
AHS 252- Medieval to Modern Art - 4 cr.
AHS 250 - Asian Art - 4 cr.
AHS 251 - Pages Through Time: Art of the Book – 4 cr.
A 384/484 - Gallery Management and Social Media – 1 cr.
CA 250 - Kick Start Creativity – 4 cr.
CA 300 - Creativity and Careers – 4 cr.
EN 252 - Fiction into Film- 4 cr.
INS 300 – International Studies Course – 3 cr.
MDIA 401 - New Media – 3 cr.
Required Assessment (final semester): AHS 494 -Portfolio Assessment – 0 cr.
This practical minor offers you the opportunity to hone your artistic and digital skills to meet the communication needs of contemporary careers. Whether you major in business, psychology, science or any other field, you will need to convey information to your clients, colleagues or the public. Learning the fundamentals of visual and communication design will prepare you to contribute to the success of communication strategies and media campaigns. Tech-savvy women with an artistic side are drawn to this minor that features digital media design.
Have questions about the Studio Art Minor at Alverno? We invite you to connect with faculty and learn more.
The Studio Art Minor is designed to allow students from a variety of backgrounds to maximize their creativity for personal enrichment or as an expansion of career skills in design, cultural awareness, problem-solving and visual literacy. Art allows the student to explore broader questions of creativity, human meaning, wellness and physical properties of media while working side by side with peers in interactive art studios.
Beginning and intermediate courses provide students with creative and cultural theories, media skills and vocabulary. In art history, studio or travel courses as well as exhibition settings, students analyze past and present arts to discuss how and why people have chosen to record their values through art.
Flexible choices of advanced studio art electives allow students to express their own point of view and apply ideas from personal life interests or content from their majors. Students enjoy many opportunities to exhibit their work and participate in creative interaction with visiting artists and the broader community.
While creating a portfolio of multiple media students engage in both a personalized creative process and critical interpretation of their own work or works of others. In their final semester they work in collaboration with peers and the gallery director to create a public exhibition and discussion of meaningful content across their semesters of study.
Or FA 110 Arts Series 4 cr.
A 210 - Ancient Art 2 cr.
A 241 - Renaissance Art 2 cr.
A 250 - Asian Art 4 cr.
A 251-Pages in Time: Art of the Book 4 cr.
A 309 - Nineteenth Century Art 2 cr.
INS 300 -Series International Travel 3 cr.
A 310 - Modern Art 2 cr.
A 311 - Understanding Contemporary Art 2 cr.
A 409 - Contemporary Topics in Art 3 cr.
Science Experiments, Self Employment in the Arts, Art in the Museum, The Art of Creative Video, Grant Writing for Arts and Education and more.
All electives are also offered at the advanced 400 level.
A 493 - Graduating Portfolio Assessment 0 cr.

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Cell-based therapies are moving medical treatments forward, but intellectual property uncertainties may delay progress.
Treatment using cell-based therapies is a rapidly advancing area of clinical research and development. It is also one that involves significant investment and, therefore, can be expected to have concomitantly significant costs to patients and their insurers. Accordingly, patent exclusivity will be important to defray high development and regulatory compliance costs. The nature of such therapies, and recent patent law trends regarding natural products and methods relating to the practice of medicine, suggest these therapies may not be given the type of robust patent protection conventionally available for small-molecule drugs. Even method-of-treatment claims, which are less prone to impediments in patent procurement occasioned by these recent legal trends, or invalidation even after grant, may not provide sufficient protection in light of statutory “safe harbors” enacted almost a quarter century ago against infringement liability enjoyed by medical professionals. In addition, cell-based therapies may be patient-specific (e.g., based on idiopathic antigenic reactivities for oncogenic immunotherapies) and be unable to satisfy the disclosure requirements of the patent statute or to have claims that would apply broadly to therapies for heterogeneous patient populations. Indeed, it may be the case that regulatory exclusivity—analogous to the 12-year market exclusivities for biologic drugs provided by the Biologics Price Competition and Innovation Act (BPCIA)—will be more relevant than patenting to development of cell-based therapies. The prospects for the impact of these patent considerations will be discussed.
The history of biomedical advances over the past 50 years has focused predominantly of increasing complexity, from small-molecule therapeutics to antibodies, cytokines, blood-clotting factors, and protein hormones such as insulin and erythropoietin. The next great advance is cell-based therapies, which have the potential to provide more targeted therapies for diseases of aging (Parkinson’s disease, ALS, stroke, and a variety of bone and joint disabilities), autoimmune diseases (diabetes, Crohn’s disease), and cancer (through patient-specific activated T cells and other engineered hematopoietic cells). These treatments are one of the most rapidly advancing areas of clinical research and development. However, as was the case with earlier, high-complexity therapies, the path forward is uncertain; development requires significant investment and can be expected to have similarly significant costs to patients and their insurers at a time when these costs are political liabilities. Nevertheless, if these investments are to be made, exclusivity—particularly patent exclusivity—will be crucial. The present patent landscape in the United States provides little comfort that these exclusivities will be available to sufficiently protect investment in this technology.
Cell-based therapies come in several overlapping varieties. On the one hand, therapeutic cells can be autologous to the individual; the cells used for therapy are isolated and/or derived from a patient, concentrated, modified, or otherwise manipulated and then returned to the patient. Examples of current technologies using autologous cells include hematopoietic stem cells isolated from bone marrow or umbilical cord blood. There has been some thought that cord-blood stem cells could eventually be routinely stored for use during an infant’s lifetime as needed. Other, more nascent sources of autologous cells include adult stem cells isolated from tissues; these include mesenchymal and neural stem cells derived from adult tissue or stimulated to differentiate from embryonic stem cells.
In the other broad category are allogeneic cells, derived from anyone other than the patient. Such cells have the advantage of being capable of mass production and being available off-the-shelf and, to some extent, standardized with regard to biochemical, metabolic, and antigenic properties. Disadvantages include the possibility that for any particular patient, immunological rejection may be triggered. These cells include cells having the broadest applicability, such as human embryonic stem cells and induced pluripotent cells, which can be generated by introducing four well-defined genes (Oct3/4, Sox2, c-Myc, and Klf4) into cells from appropriate tissues. Human embryonic stem cells have the broadest potential applicability because they are the most pluripotent, but their use can raise ethical issues, whereas iPSCs are less robust but also less ethically challenging. Another distinction is whether the cells are isolated, purified, and usually concentrated, or if the cells are modified either by how they are cultured or—more generally—by genetic engineering.
Many groups worldwide are developing cell-based therapies for a variety of diseases; most of those (87%) in clinical trials are being conducted in Phase I or II. Half of such trials are in the US with another one-quarter in Asia (1). About one-third of these trials include mesenchymal stem cells; 17% utilize hematopoietic cells, and only 5% involve embryonic stem cells (2). These trials are directed to a wide variety of diseases: 17% to cardiovascular diseases, 12% for neurological disorders, 11% for autoimmune disease, and 8% for skeletal or joint injuries (2).
The effects of cell-based therapies also vary. For neurological diseases, it is thought that treatments are neuroprotective for existing cells and tissue rather than providing neural cell replacement. For example, the NurOwn cell therapy product (Brainstorm Cell Therapeutics, Inc.) is comprised of autologous mesenchymal stem cells (MSCs) modified to express neurotrophic factors, shown to promote motor nerve survival (1). Conversely, cell therapy for ischemic stroke is focused on cell replacement as well as neuroprotection and angiogenesis induction by using a combination of bone marrow-derived mesenchymal stem cells, neural stem cells, and other stem cell types (1).
“1. A nucleic acid polymer encoding a chimeric T cell receptor, said chimeric T cell receptor comprising (a) a zeta chain portion comprising the intracellular domain of human CD3 ζ chain, (b) a costimulatory signaling region, and (c) a binding element that specifically interacts with a selected target, wherein the costimulatory signaling region comprises the amino acid sequence encoded by SEQ ID NO:6” (3).
These cells are generally autologous, and provide cells capable of specifically targeting malignant cells that have escaped a patient’s native immune surveillance. Several companies (Juno Therapeutics, KITE Pharma) are actively pursuing these therapeutic modalities (4).
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title” (5).
Until recently, this section has been interpreted broadly by the courts, including the Supreme Court’s decision in Diamond v. Chakrabarty (6) that a genetically manipulated bacterium was eligible to be patented. Beginning in 2012, however, the Supreme Court began retrenching on the decades-old nostrum that “everything under the sun made by man” should be patent-eligible, and began to reemphasize the notion that there are exceptions to patent eligibility. These are usually defined (albeit loosely and rather indefinitely) by the Court as “laws of nature, natural phenomena, and abstract ideas” (7).
Relevant to cell-based therapies is the Supreme Court’s 2013 decision in Association for Molecular Pathologists v. Myriad Genetics (“Myriad”) (8), in which the Court deemed patent ineligible DNA isolated from nature (while at the same time deciding that cDNA, made from mRNA converted by the viral enzyme reverse transcriptase, was patent eligible). The decision was expressly limited to the question before the Court—“was a human gene patentable?”—freighted with all the social, moral, and political weight this characterization could bring to bear. It was the Court’s rationale, however, that has resonated negatively with regard to patenting natural products (as many of the cell-based therapies certainly are). This rationale was that “mere” isolation of a portion of human DNA (a “gene”) from a chromosome was not enough to render the isolated DNA patent eligible. There must be “something more” (a concept taken from an even more troublesome Supreme Court decision involving diagnostic method claims, Mayo Collaborative Services v. Prometheus Laboratories) (9), which has been interpreted to mean a structural difference. In a stroke, the decision put in question and jeopardy all natural products that were “merely” isolated from nature.
While there have been relatively few court cases (and in particular, no traditional pharmaceutical cases) testing the principle, the US Patent and Trademark Office (USPTO) has in various attempts to apply these rubrics emphasized structural variants or differences between a natural product as it exists in nature and how it is claimed when deciding patent eligibility. The Court was careful in its Myriad decision not to overrule Chakrabarty, and thus genetically engineered or otherwise modified cells likely remain patent eligible. However, other types of cells used in cell-based therapies (e.g., hematopoietic cells, embryonic and adult stem cells, and products of such cells such as dermal sheets used to treat burn victims) are clearly at risk with regard to whether patent protection is or will be available.
Paradoxically, methods for making such cells seem to remain eligible for patenting. This status stems from language in the Court’s Myriad decision itself, as well as how the Court of Appeal for the Federal Circuit (having jurisdiction over all US patent questions) has interpreted the patent statute. In Rapid Litigation Management Ltd. v. Cellzdirect, Inc. (10), the Federal Circuit reversed a district court decision that claims to methods for culturing human hepatocytes were patent-ineligible for relying on a law of nature. The invention was directed to methods for producing pure cultures of mature hepatocytes to be used for testing, diagnostic, and treatment purposes. Hepatocytes in the prior art were disadvantageous for these purposes because they were only available from liver resections or non-transplantable livers of organ donors. This type of cell has a short lifespan that resulted in erratic supply as well as limited and unreliable availability.
The inventors found, contrary to the understanding in the prior art, that certain hepatocytes in a hepatocyte population could be frozen and thawed multiple times and retain viability. The appellate panel found that the claims for such methods were not directed to a patent-ineligible “law of nature” but to an application of such a law, “a new and useful laboratory technique for preserving hepatocytes.” Viewed in this way, the court held that the claimed method was “precisely the type of claim that is eligible for patenting.” Similar logic may apply to methods for producing cells for cell-based therapies, particularly insofar as such methods overcome the types of challenges commonly faced in the development of cell-based therapies. Although the district court’s initial invalidation was an example of the risk even method claims can be subject to when a district court applies prevailing Supreme Court precedent, this recent Federal Circuit case suggests that methods that result in useful compositions can be patent eligible.
Even if patent-eligible, however, other applications of the patent statute may pose impediments to sufficiently robust patent protection for cell-based therapies (albeit to a lesser degree and in a less categorical manner). Cell-based therapies can be patient-specific (e.g., based on idiopathic antigenic reactivities for oncogenic immunotherapies) and be unable to satisfy the disclosure requirements of the patent statute or to have claims that would apply broadly to therapies for heterogeneous patient populations. For example, in the Federal Circuit decision, In re Alonso (11), the claimed invention was directed to antibody reagents and methods for treating neurofibrosarcomas using a monoclonal antibody idiotypic to each patient’s cancer. The evidence in the specification showed that infusion of a human patient with 100 mg of an expressly disclosed monoclonal antibody resulted in clearance of lung metastases within 24 hours and regression of the primary brain tumor within seven days. The USPTO rejected claims to such antibodies (and the Federal Circuit affirmed) based on failure to satisfy Section 112(a) of the patent statute (12), which requires an adequate written description sufficiently explicit and detailed that the skilled worker could make and use the claimed invention. In this case, the patent applicant was unable to satisfy that provision, due to the unavoidable idiotypic (and idiosyncratic) characteristics of the claimed antibodies. Similarly, cell-based therapies that rely on such characteristics (particularly, for example, those using autologous cells) may suffer the same fate and be denied patent protection.
Finally, even method-of-treatment claims, which are less prone to impediments in patent procurement occasioned by these recent legal trends, may not provide sufficient protection in light of statutory “safe harbors” enacted almost a quarter century ago against infringement liability enjoyed by medical professionals (13).
Cell-based therapies represent in many ways the cutting edge of medicine, promising to provide treatments for diseases that cannot be treated (at least adequately) using conventional pharmaceutical agents or even complex biologic drugs. Recent trends in US patent law, however, make it likely that many such therapies, or aspects thereof, will not have the kind of patent exclusivities available that would justify the massive expenditures necessary to bring them to market. In these circumstances, it may be necessary for developers to rely on regulatory exclusivity analogous to the 12-year market exclusivities for biologic drugs provided by the BPCIA, whether extant or provided by Congress in response to the need for these therapies. The nascent nature of these therapeutics have not brought these considerations to the fore with policymakers as yet, but it does not take extraordinary vision to see that the current patent and regulatory landscape is not favorable to expeditious development of such therapies at a time when science has provided the means and the public has the need for them.
Kevin Noonan is partner at McDonnell Boehnen Hulbert & Berghoff LLP and chair of the firm’s biotechnology and pharmaceuticals practice group.
1. E. Buzhor et al., Regen. Med. 9 (5), https://doi.org/10.2217/rme.14.35 (Nov. 5, 2014).
2. T.R. Heathman et al., Regen. Med. 10 (1), 49-64 (2015).
3. M. Sadelain, et al., “Nucleic acids encoding chimeric T cell receptors,” US Patent 7,446,190, Nov. 2008.
4. June Therapeutics, “Juno Therapeutics Defeats Kite Pharma’s Challenge to CAR T-Cell Patent,” Press Release (Seattle, WA, Dec. 19, 2016).
5. Leahy-Smith America Invents Act, Public Law 112-29, § 33, 125 Stat. 284 (Sept. 16, 2011).
6. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
7. Funk Bros.Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948).
8. Association for Molecular Pathologists v. Myriad Genetics, 133 S. Ct. 2107 (2013).
9. Mayo Collaborative Services v. Prometheus Laboratories Inc., 132 S. Ct. 1289 (2012).
10. Rapid Litigation Management Ltd. v. Cellzdirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016).
11. In re Alonso, 545 F.3d 1015, 1019 (Fed. Cir. 2008).
12. Leahy-Smith America Invents Act, Public Law 112–29, § 4(c), 125 Stat. 296 (Sept. 16, 2011).
13. Leahy-Smith America Invents Act, Public Law, 112–29, §§ 3(g)(2), 16(a)(1), 20(i)(4), (j), 125 Stat. 288, 328, 335 (Sept. 16, 2011).


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In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case.
The dispute at hand involved a football club affiliated with the United Arab Emirates Football Association (“UAEFA”) and a player’s agent. The club at hand owed a commission to the agent following the completion of a player’s transfer. The agent ultimately won the case before the CAS and the latter awarded him monetary compensation against the football club.
Shortly thereafter, means of enforcement against the club were sought.
It is widely recognized that the awards rendered by the CAS do qualify as awards under the New York Convention and may thus be subject to the classic enforcement provided therein.
Whilst this is to be welcomed because it offers alternatives to the prevailing party seeking recognition and enforcement of the arbitral award, the following will show that another route exists, which may prove just as effective whilst saving both time and money.
Indeed, though the United Arab Emirates did ratify the New York Convention, the general critics mentioned above also applied in the case at hand. This meant that going down the route of direct enforcement against the UAE-based football club would have had several drawbacks. First, the translation workload in order to comply with the local procedural rules was significant. Second, since the recognition procedure was due to take place in front of national courts, a local law firm would have had to be retained. Finally, there was no clear timeline as to when exactly the due compensation would effectively be paid.
Luckily, the world of football organizations provides for an alternative path, which proved to be highly effective at hand. Indeed, as a result of the deep-rooted integration of CAS and of its decisions in effectively all organizational layers of national and international football, the New York Convention is not the only global enforcement mechanism available to a prevailing party in that field. Although it requires to take steps outside that Convention and, as a result, of the entire ‘state-supported’ enforcement system, the indirect enforcement described below nonetheless proves to be a viable alternative for parties involved in football-related arbitration.
It all starts with art. 15 para. 1 let. f of the FIFA Statutes which stipulates that the statutes of the member associations shall ensure that, inter alia, all relevant stakeholders must agree to recognize the jurisdiction and authority of CAS. Art. 23 para. 1 let. f provides for a similar obligation with regard to the confederations’ statutes.
Pursuant to art. 61 para. 1 of the Statutes of the Asian Football Confederation (“AFC”), to which the UAEFA is a member, the AFC recognizes the CAS to resolve disputes between, inter alia, clubs and intermediaries. Further, according to art. 62 para. 1 of said Statutes, the member associations, among which the UAEFA, shall agree to recognize CAS as an independent judicial authority and to ensure that their members and clubs comply with the decisions passed by CAS. Any violation of these provisions will trigger a sanction on the breaching party, according to art. 62 para. 3 of the AFC Statutes.
Finally, art. 19 para. 4 of the UAEFA Statutes provides that each club, upon application for affiliation, shall provide a declaration whereas it undertakes to accept and implement the decisions rendered by the CAS.
In light of the above, the rules of football organizations put in place a terraced indirect enforcement mechanism regarding CAS awards, whereas each club undertakes to comply with such awards vis-à-vis its home association, each such association being in turn similarly obligated vis-à-vis FIFA and its own Confederation. The latter finally has the duty to ensure that its affiliated associations recognize the authority of CAS, thereby closing the loop.
The broad sanction mechanism at every stage leaves considerable discretionary powers to the competent bodies in order to appropriately pressure the breaching stakeholder, on whichever link in the chain the latter may be, into complying with CAS decisions.
The FIFA Statutes do not provide for any particular body directly tasked with the enforcement of CAS awards against FIFA’s affiliates and their stakeholders. Nor is there any particular procedure enshrined in the FIFA Statues as to how the indirect enforcement of CAS awards shall take place. In particular, art. 64 FIFA Disciplinary Code only applies to CAS decisions in appeal arbitration proceedings regarding the decisions of FIFA and not to CAS decisions rendered in an ordinary arbitration procedure.
However, art. 45 of the FIFA Statutes does provide that the Member Associations Committee shall deal with relations between FIFA and its member associations as well as the member associations’ compliance with the FIFA Statutes. The same is true at the level of the AFC, whereas art. 54 of its Statutes provide that the Associations Committee shall be responsible for relations between the AFC and its Member Associations as well as Member Association’s compliance with FIFA and AFC Statutes and Regulations.
In other words, both at FIFA and AFC level, a standing committee is responsible for ensuring that the Members comply with the applicable statutes and thus, inter alia, with awards rendered by CAS.
Based on the above, we concluded that in order for the competent FIFA and AFC standing committees to examine the case of a club not complying with a CAS award, they needed to be first convinced that (i) a final and binding CAS award had been rendered against a club affiliated with a member association and that (ii) such club refused to comply with said award. Second, the above-mentioned committees would need to be shown that the national football association has been notified of such occurrence and been asked to take appropriate actions against the club according to its own statutes.
From this point in time onwards, the FIFA and AFC standing committees will have been notified that a member’s association has been asked to remedy a matter of non-compliance of an affiliated club with a CAS award and thus such association is now under a statutory obligation to ensure compliance from the club, as described above, or else may itself be found to have breached the FIFA and/or AFC Statutes and sanctioned accordingly.
Shifting the focus back to the case that prompted the idea of this blog, once the route leading to indirect enforcement was mapped, we proceeded with gathering the evidence needed, i.e. that the CAS award was final and binding upon the football club.
Section 193 of the Swiss Private International Law Act – which applies to international CAS proceedings – enables the parties to request an enforceability certificate from the competent state court regarding an award rendered by an international arbitral tribunal with its seat in Switzerland. This document certifies that the award in question is final and that no appeal can be filed against it. In the case of the CAS, the state court competent for the issuance of an enforceability certificate is the Tribunal cantonal, in Lausanne.
Once this certificate was obtained, we filed it together with a copy of the award to the competent national association, the UAEFA, urging the latter in writing to request from the club that it complied with the CAS award, or else the club would be sanctioned. Both the competent standing committees of the FIFA and of the AFC received a copy of that letter.
From this moment onwards, the machinery of the indirect enforcement mechanism was switched on and we knew that leverage existed at every level, up until FIFA, to ensure that each stakeholder, be it the UAEFA or the AFC, pressures its affiliated bodies, and, ultimately, the club, into complying with the CAS award.
In the case at hand, this method proved to be successful. Indeed, as a result of the aforementioned steps, the AFC promptly contacted the UAEFA, requesting this matter to be solved and the football agent received the awarded compensation from the club within a few weeks after the UAEFA, the AFC and the FIFA were notified as described above.
This case shows how operating outside the New York Convention can prove both cost- and time-effective. When used properly, the indirect sanction mechanism put in place by football organizations proves to be a proper alternative to classic enforcement proceedings and shall in any event be considered as a viable option under similar circumstances.
 Flannery/Merkin, Arbitration Act 1996, 5th Ed., Oxon, 2014, p. 356.
 V.V. Veeder, Is There a Need to Revise the New York Convention - Key note speech, in: ‘The Review of International Arbitration Awards – IAI Forum’, International Arbitration Institute, 2008, p. 183 et sqq., p. 186.
 Gaillard, ‘The Urgency of Not Revising the New York Convention’, in: The New York Convention at 50, 2008, p. 689 et seqq., p. 690.
 Nafziger/Ross, Handbook on International Sports Law, Edward Elgar 2011, p. 40; Rubno-Sammartano, International Arbitration Law and Practice, 3rd Ed., JurisNet, 2014, p.1709; Nolon, Arbitration and the Olympic Athlete, in: McCann, ‘The Oxford Handbook of American Sports Law’, OUP 2017, p. 444.
Art. 15 para. 1 let. f of the FIFA statutes reads as follows: “Member associations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters: […] all relevant stakeholders must agree to recognise the jurisdiction and authority of CAS and give priority to arbitration as a means of dispute resolution […].

matches:
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Art. 23
art. 61
art. 62
art. 62
art. 19
art. 64
art. 45
art. 54
Art. 15


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Support your 2009 Nose Bleed Seats Award winning Promotion of the Year.
We dive head first into the action on this cold Sunday afternoon in Danville with a tag team bout between the team of “The Lord of the Ring” Issan Hadeev and his partner for the afternoon, “The Unpredictable” Cyclone. Their opponents for the match were Cecil Cerveza and “Dangerous” Drew Thomas. It was a very closely contested match up, and in the end the team of Issan Hadeev and Cyclone were victorious after Issan hit the “Jihad” neck breaker on Cecil while Drew and Cyclone were fighting on the outside of the ring.
Following the match, still not satisfied that Issan had gotten what he deserved from the last NBWA event when Drew lost a “First Blood Match” to Issan, Drew issued a challenge to Issan for an “Unlucky 13 Staple Gun Match” to be held on Saturday March 7th at the NBWA’s huge 4th anniversary event. On a side note, Issan is still yet to be defeated in the “Unlucky 13 Staple Gun Match” I believe the record is now 2-0 with wins over Jaxson Pride, and Cecil Cerveza.
The second match of the afternoon was the second ever NBWA women’s match and was between “Serenity” (formerly Brandi Harris) and NBWA newcomer Alicia. Serenity improved her NBWA record to 2 and 0 with a win in this match, but it’s worth noting that she had her feet on the second rope for added leverage when she pinned Alicia.
After the match “The Fabulous” Jason V. entered the ring and pointed out that he likes to surround himself with excellence, noting that Serenity is undefeated in the NBWA, and “Aaron and Jeff” are the NBWA Tag Team Champions. Jason V. also said that he would allow “Bloody” Harker Dirge to be in the NBWA Invitational Battle Royal….IF he could defeat a special hand picked opponent later on in the show.
Next up for the afternoon, NBWA Lead Council, Jonathan Castle made his way to the ring to inform NBWA Mid-West Television Champion, Eric Ruffington that since he saw it fir to boycott the “Pick Your Poison” event on Feb.7th, Mr. Ruffington would not only have to compete in the karaoke competition that the fans choose, he was also going to compete in a dance competition, AND a wrestling match against Cheapshot Mcgrot. First up was going to be the singing competition, but before we can get started Mr. Castle introduces us to the 3 hand picked judges for the competition. The first judge is Marvin, the owner of the NBWA gym, and the maker of the worlds best nachos! The second judge is NBWA ring announcer The Lovely Miss Amanda. The third judge making his long awaited, surprise return to the NBWA….former NBWA Heavyweight Champion…”The Strangler” Diego Corleone!
In the first phase, Cheapshot McGrot sang the song “I believe I Can Fly” made popular by R. Kelley, and received good reviews from both Marvin, and Miss Amanda, but Diego made a comment something to the likes of the song sounding similar to the sound artificially inseminating sheep. I apologize for not knowing the song Eric Ruffington performed, but I do remember he didn’t impress Marvin or Miss Amanda, but got a stellar review from Diego.
The second phase was the dance phase of the competition, and Cheapshot McGrot did the “Soldja Boy” and again received good reviews from Marvin, and Amanda, but of course Diego had something negative to say, something to the effect of reminding him of a fat stripper, who needed to have a bag pulled over her head. Then it was Ruffington’s turn to dance and to start off, he said he was going to need a little help from a couple friends, then Aaron Matthews and Jeff Harris came to the ring to help him with the dance made popular by the Saturday Night Live cast, Chris Kattan, Will Farrell, and Jim Carey. Marvin and Amanda didn’t care too much for the dancing, but Diego gave it favorable reviews.
So now onto the wrestling match between Mr. Ruffington and Cheapshot. Ruffinton was in control for much of the match, and almost ended the match with a European Sleeper hold, but Cheapshot was able to hang on. Cheapshot eventually took the upper hand in the match and was going to the top rope for his signature diving headbutt when Diego, who was still sitting at ringside jumped up from his judge’s seat and pushed Cheapshot from the top rope, disqualifying Ruffington from the match. Keep in mind though, a title does not change hands on a DQ.
After the match was over Aaron and Jeff came to the ring and assisted Ruffington and Diego in the onslaught on Cheapshot. Luckily for Cheapshot help was on the way in the from of Heritage Wrestling Coalition Champion, “Bloody” Harker Dirge, who’s appearance alone cleared the ring.
As Ruffington, Matthews, and Harris all exited the arena, Diego got the mic and announced that he wasn’t just here for judging this competition, he was here to face off against BHD as Jason V.’s hand picked opponent, and what better time to begin that match than NOW!
So the match between “Bloody” Harker Dirge and Diego Corleone begins, with Harker’s spot in the 2nd Annual NBWA Invitational Battle Royal on the line. This was a great match by the 2 former champions and the match came to a conclusion when referee Carley Rae was inadvertently knocked out, and Diego, ever the opportunist went to the corner of the ring and retrieved BHD’s chain and attempted to use it, but Harker was able to make him miss, and then used the chain himself and delivered a shot to Diego’s throat, and went for the cover. By this time the referee was coming to, rolled over, and administered the 3 count.
After a brief intermission, we dive head first back into the action with a match between Nicky”The Weasel” Mankotti and “The Catalyst” Corey Carter, who is making his first appearance back in the NBWA since the NBWA event on May, 24th 2008 when he participated in a “Gauntlet Match” against Harker Dirge. This time though Mr. Carter fared much better in the NBWA ring, gaining a pinfall over “Weasel” following a reverse back breaker.
Next up for the afternoon was a NBWA Tag Team Championship match between the champions, “Aaron Matthews and Jeff Harris, and their opponents were D’Andre King, and Vic “The Pitbull” Santelli, otherwise known as “Encore”. This was a great back and fourth match between the champs, and the #1 contenders. Jeff and Aaron had D’Andre isolated for much of the beginning of the match, but when Pitbull entered the match he was taking care of business. In the end though neither team was awarded with a victory. As D’Andre, Jeff and Aaron were fighting outside the ring, Pitbull climbed to the top rope and dove onto the 3 men outside, and this eventually led to a double count out.
The next match has been the center of much chatter for the last couple of days since the show. It was between the team of Eric Ruffington and his partner for the afternoon was Morbid, who was accompanied to the ring by Alicia and their opponents were Joey Grunge and Dan The Man. Grunge and Dan the man had much of the match going in their favor, but towards the end of the bout Eric Ruffington left his partner Morbid to face both Grunge and Dan all alone, and that is when things fell apart. Morbid hit the mat, and had been pulled out of the ring by his Alicia. Referee Chad Tally who had been sitting at ringside noticed things didn’t look quite right and ran to check on Morbid, apparently Morbid told Tally he couldn’t feel his arms, and Tally motioned that he needed medical assistance for Morbid. Then the announcement was made asking all the fans in attendance to please go outside while Morbid was being tended to. While the fans were outside it became know that there was nothing wrong with Morbid, and that he had faked an injury because he in fact was an untrained wrestler, that didn’t know how to handle the situation inside the ring, so he tried taking the easy way out of the match and faked the injury. Just minutes after being asked to leave ringside the fans, not knowing what was going, on were allowed back into the arena, and the show was allowed to continue.
Finally, we have come to the main event of the evening, the NBWA Heavyweight Champion “The Fabulous” Jason V., who was accompanied by Serenity, putting his title on the line against wrestling legend, Tracy Smothers. It was a slow and methodical beginning to the match, as Jason V. tried to size up his much larger and stronger opponent. To Jason V.’s credit though he was able to go toe to toe with the ring legend, using a number of wrestling holds to wear down Smothers. In the end though, it wasn’t any wrestling holds, or maneuvers that won the match for Jason V. It was the help, yet again of the crescent wrench that we have seen used for the last 2 events. This time, while the referee was distracted by Serenity, Jeff Harris slipped into the ring and delivered a shot to Smother’s head with the wrench. When referee Carley Rae turned around, all she saw was Jason V. covering Smother’s and she counted 1…2…3!
Winner by pinfall: “Fabulous” Jason V.
After the match HWC Champion, “Bloody” Harker Dirge came to the ring to aid the fallen legend, but Smother’s who quite literally…never saw what hit him….was confused with the situation, you see when Smothers came to, he saw BHD holding a wrench in his hand and had thought it was Harker who had dealt the blow to him. After some convincing from the crowd, Tracy seemed to accept the fact that it was NOT Harker who had hit him, and the two men shook hands. But just when Harker least expected it, Tracy took the wrench that Harker had still been holding, and gave Haker a vicious shot to the throat with the wrench! Before he left the building though, Tracy was sure to insult all the fans in attendance that afternoon, the he got back in his helicopter and flew back to Tennessee.
First and foremost, THANK YOU to all the loyal NBWA fans that came to Danville on Saturday to support the NBWA. Without your support and devotion there would be no NBWA, so thank you to you all!
As we are set to kick off “Pick Your Poison” we are informed by The Lead Council to the Board of Directors, Jonathon Castle that the NBWA Mid-West TV Champion, Eric Ruffington is boycotting today’s show, due to the fact that the NBWA fans had chosen for Mr. Ruffington to face off against Cheapshot McGrot in a karaoke competition. So,wrestling Cheapshot McGrot this afternoon was Cecil Cerveza. To begin the match Cheapshot demonstrated to Cecil how to do his trademark hand jive, but after that, the fun and games were over with. It was a hard fought match between the NBWA veterans but in the end Cheapshot was victorious.
Winner by pinfall: Cheapshot McGrot.
Next up on the agenda was a tag team match between the team of Wild Bill and Nicky “The Weasel” Mankotti against “The Frat Pack” which was the team of Gavin Alexander and Jonathon Napier. With their new attitudes in tow, Alexander and Napier are looking to take the NBWA tag team division by storm! There seemed to be a few miscommunications during the match for Gavin and Napier, eventually causing “The Frat Pack” the match. Wild Bill ended the match when he pinned Gavin following a frog splash.
Winners by pinfall: Wild Bill and Nicky “The Weasel” Mankotti.
Following the match after Gavin and Napier had left ringside, Bill and Weasel were celebrating their victory when who should appear but Aaron Matthews. It looked as though Matthews had something he wanted to discuss with Wild Bill, but as Aaron had Bill’s attention Jeff Harris attacked Bill from the backside. This wasn’t just an attack, it was evident that Harris and Matthews had every intention of putting Bill out of action by trying to take out his shoulder. Just when it looked as if Wild Bill was done for, ‘Bloody” Harker Dirge had come to the rescue. BHD had chased Harris and Matthews out of the ring, and in their haste someone had forgotten their tag team title belts, and now Harker Dirge was in possession of the belt.
Following the melee Miss Amanda announces that the new NBWA Heavyweight Champion “Mr. Fabulous” Jason V. was going to be making his way to the ring accompanied by Serenity. Jason V. makes it known that the NBWA will be keeping in last years tradition with an invitational battle royal to celebrate the NBWA’s 4th anniversary. Today though, we will be getting a small taste of the battle royal with the winner of today’s battle royal being granted with the final entry in the HUGE invitational Battle royal on March 7th. With that being said, let the Battle Royal begin…..
The opening participants are DaCobra and “Dangerous” Drew Thomas, who are followed by “The Unpredictable” Cyclone, Aaron Matthews, Jeff Harris, Angelo Santelli, Nicky “The Weasel” Mankotti, Serinity, Issan Hadeev, Cheapshot McGrot, “The Prime Cut” Nick Cutler, Vic “The Pitbull” Santelli, Wild Bill, D’Andre King, “The Apex” Blake Steel, Gavin Alexander, Cecil Cerveza, Christian Rose, and Anderson Rhodes,. When the dust settled the final two combatants were Angelo Santelli, and Aaron Matthews, the two former members of “The New Breed” stood face to face for a moment, and then all hell broke loose as the former allies tried to tear one another limb from limb, but in the end Angelo sent Aaron Matthews over the top rope for the win, and the final spot in the invitational battle royal to be held on March 7th, with the w inner being guaranteed a NBWA Heavyweight Title shot.
Following the match Santelli made it know that he was the most decorated champion in the NBWA, and the only title that had eluded him over the years was the one title in Jason V’s possession and he was coming after it!
The next match of the afternoon was a “First Blood Match” between “The Lord of the Ring” Issan Hadeev and “Dangerous” Drew Thomas. With this match being a no DQ match we saw the use of many foreign objects such as Issan’s flag pole, a chair, and a staple gun. In the closing moments of the match involved Issan Hadeev repeatedly stapling the forehead of Drew Thomas causing his head to bleed and thus ending the match.
Winner by first blood: “The Lord of the Ring” Issan Hadeev..
After the match had ended something inside Drew Thomas head snapped he viscously attacked Issan and the two former members of “Dangerous by Design” brawled inside the ring and out. Members of the security staff tried to separate the two but to no avail as the y brawled their way into the locker room area.
The fifth match of the afternoon was another match that was chosen by the NBWA fans for “Pick Your Poison” and was between the team of the newly crowned NBWA No-Limits champion “The Prime Cut” Nick Cutler, and the man he defeated for the=2 0title on Jan.11th “The Apex” Blake Steel. Their opponents, who won the fan polling was the team of D’Andre King and Vic “The Pitbull” Santelli, otherwise known as “Encore”. It was evident from the get go that the team of Cutler and Steel were going some trouble putting their past match behind them. You could hear Cutler throughout the match tell Blake Steel “I could have done it better”. Nick Cutler wasn’t the only one who had a problem with Blake Steel during the match up, Anderson Rhodes also had issues with Steel after Blake had told Rhodes to go back to the locker room during the match, and Rhodes promised that Blake would have to deal with Eric Ruffington when he returned to the NBWA next month. With all the bickering within the team of Cutler and Steel, it was just a matter of time before the team self destructed. I the closing moments of the match it looked as though Blake Steel was going to pull of the win, but Cutler entered the ring and delivered an “Un-prettier” to Blake Steel and then draped D’Andre King over Blake’s lifeless body for the 3 count.
The next match of the afternoon was the match between the 2008 Alberta J. Murray Memorial Tournament Champion, Da Cobra vs. “The Unpredictable” Cyclone. This match was al so a “Pick Your Poison “match and the NBWA fans had chosen for this match to be a “ Caribbean Rules Match”. Apparently the rules for this match were chosen at one point or another by Cyclone himself, and decided it would be to his advantage to keep the rules of this match a secret until the rules had to be enforced. The one rule we did know at the onset of this match was that there were two weapons in opposite corners of the match, and they may be used during the match up. But, there were certain conditions…. They may only be used for 30 seconds, a bell would be sounded at the beginning of the time period, and a bell would be sounded at the end of the time period, and if either participant was still holding the weapon at the sound of the second bell, that wrestler would be disqualified. There would be 4 of these periods within the 15 minute time limit for this match. So after the lengthy explanation of this rule the bell sounded and Da Cobra hit Cyclone square in the head with a roundhouse kick and went for a cover and got the 1..2…3! BUT….. “The Don” Kato Morales chimed in from his position at the announce table, and read from the list of Caribbean Rules that there were no 3 counts, you must pin your opponent for a four count. So the match was restarted, and we saw 2 of the weapons periods come into play, the first, Cyclone used a chair shot to20the midsection of DaCobra, but was only able to get a 3 count. Some time went by and the action had now spilled outside the ring when the bell signaling a second weapon period sounded and DaCobra had used a cookie sheet to deliver a knockout blow to Cyclone outside the ring, and a referee Carley Rae administered a 10 count, BUT….yet again “The Don” interjected himself and let everyone know that in a “Caribbean Rules Match” that in order to be counted out, it must be a 20 count. But by that time Cyclone had recovered and re entered the ring. So the match continued until a point where DaCobra had thrown Cyclone over the top rope, and Cyclone’s entrance music began to play, at first everyone had thought it was a malfunctioning sound system, but yet again ‘The Don” announced one more of the undisclosed Caribbean rules, and said that if anyone was thrown over the top rope, it would lead to a disqualification. So Cyclone was officially announced as the winner of the match.
Winner by disqualification: “The Unpredictable” Cyclone.
Now, the time had come for this afternoons main event. A Handicapped tag team elimination match between “The Fabulous” Jason V. and his partners, the NBWA Tag Team Champions” Aaron Matthews & Jeff Harris, who were accompanied by Serenity. Their opponents for the afternoon were The Heritage Wrestling Coalition Champion “Bloody0 Harker Dirge, and the partner for BHD was chosen by the NBWA fans through the “Pick Your Poison” poll was former NBWA Tag Team Champion Noon Moon. As a last minute stipulation to the match it was announced that if BHD or Noon Moon pinned Jason V. they would become the NBWA Heavyweight Champion, and if Aaron or Jeff pinned Harker Dirge, they would in turn become the new HWC Champion. So now with all the stipulations in place, the bell sounds and the match is under way. The team headed by Jason V. had the upper hand throughout much of the opening part of the match, as the team executed many quick tags to keep a fresh man in the ring as they wore down Harker Dirge. Eventually Harker would tag in Noon Moon to get the fresh man in the ring against the trio of champions. The match went back and fourth for some time before it came down to BHD and Jeff Harris in the ring as the legal men when harker was able to lock in his patented Dragon Sleeper, “The Dirt Nap” and Harris had no choice but to tap out. Now the odds were all evened up with 2 men on each side of the ring, that is until Harker Dirge had a momentarily lapse in sanity and retrieved his chain from the corner of the ring and used it to knock the sense out of Aaron Matthews, and gotten himself disqualified. Now Noon Moon was all alone against the team of Aaron Matthews and Jason V. Noon Moon used Harker’s mistake to his=2 0advantage though covering Matthews for the 3 count. Now it was down to Jason V. and Noon Moon. An angry Jason V. attacked Noon Moon and soon removed the mask, and the face behind the mask this time was none other than Angelo Santelli! The two NBWA vet’s fought back and fourth and as the match continued “The Don” had slyly gotten up from his seat and stood at ringside. In the mean time Serenity was walking around the ring cheering on Jason V. when “The Don” passed a huge crescent wrench off to the young lady. In the mean time, Angelo had been setting Jason up fir the “Sky High”, but Serenity had reached out to Jason V. and passed off the wrench and V. who had used it to knock Angelo’s lights out. All this was unknown to referee Chad Tally who had his back turned away from the action trying to keep “The Don” out of the match. When Tally had turned back to the action all he could see was Jason V. on top of Angelo and laid down a 3 count.
Winner by Pinfall: “The Fabulous” Jason V.
That just about wraps it up for this edition of the NBWA. Be sure to mark your calendar on Sunday, February 22nd for the next NBWA live show, featuring legend of the ring Tracy Smothers as he returns to the NBWA! The action will get under way at the New Breed Gym, located at 400 Sager St. in Danville, IL, with the opening bell set to sound at 2:00.
To begin the show, Jason Vendetta makes his way to the ring and demands a rematch against DaCobra, who had defeated Vendetta on Dec. 6th for the Alberta J. Murray Memorial Championship in a Ladder Match. Vendetta claimed that he was screwed out of his trophy by special guest referee Angelo Santelli. Santelli delivered a “Sky High” spine buster from atop the ladder on Vendetta, but only after Vendetta used the banned flipping pile driver, “The Detenator” on DaCobra. The Lead Council to the Board of Directors, Jonathon Castle said that Vendetta was not going to get a rematch, and furthermore DaCobra hadn’t even arrived at the arena as of yet. So, in a show of protest Vendetta sat in the middle of the ring and said the show would not start until he was granted his rematch, but Mr. Castle assure Vendetta that the show WAS going to begin!
Lovely Miss Amanda announced the first match of the afternoon as being for the NBWA Mid-West Championship, and would be the champion, Wild Bill accompanied to the ring by Brandi Harris vs former NBWA Heavyweight Champion, Eric Ruffington. Ruffington and Wild Bill, not knowing what to think of Vendetta still sitting in the middle of the ring began their match. During the opening moments, it was clear that Vendetta wasn’t going to leave the ring after Bill and Ruffington locked up, and Jason Vendetta was caught in between them, in frustration, Bill threw Vendetta out of the ring, only to have him return and reclaim his spot in the center of the ring. Bill and Ruffingon continued their match trying to wrestle around Vendetta but that proved to be easier said than done. In the end, Eric Ruffington was the winner of the match(with a little help from Jason Vendetta)and the new NBWA Mid-West Champion!
Winner by pinfall, and new NBWA Mid-West Champion Eric Ruffington!
Following the match, Vendetta reitereated that he wasn’t leaving the ring until he got his rematch! Who should come to the ring but NBWA Heavyweight /Heritage Champion, “Bloody” Harker Dirge! Harker says that he, like the NBWA fans are tired of listening to Vendetta’s whining and said that since he didn’t have an opponent lined up for the afternoon, and wanted to get a paycheck this week, he challenged Vendetta to a match.
The second match of the afternoon was a Gauntlet Match featuring Issan Hadeev, with a special stipulation that if Issan lost against any of his 4 opponents he would have to sing The national Anthem. Issan’s first opponent was Jordan “Shorty” Vandel, who was making his NBWA debut. Unfortunately for Jordan, it was a short lived debut, Issan had won match #1.
For match #2 Issan’s opponent was Christian Rose, who was also making his NBWA debut, and just like Jordan, didn’t last very long against an angry “Arabian Assassin”.Match #3 for Hadeev was against Nicky “The Weasel” Mankotti. Weasel fared far better than the two previous opponents, but ultimately it was the same result, Issan had beaten Weasel in the 3rd match with “The Camel Clutch”. Finally Issan Hadeev’s 4th opponent for the day was “Da Best Kept Secret” D’Andre King. This match was the most competative of the gauntlet, it started out with Issan and D’Andre testing each others strength, and then they took turns with running shoulder blocks, but neither man would budge. We saw a couple of big suplex’s from D’Andre, and both men each hit a spinebuster on the other, but in the end Issan was victorious in match #4 following a “Jihad” neckbreaker.
The next match of the afternoon was the very first NBWA women’s match, featuring Brandi Harris vs Jessika Haze. It was a great match for “Little Sis”, considering she won the match, but it was the aftermath that everyone was talking about . After Brandi’s big win in her debut, Wild Bill joined her in the celebration and in a real shocker, Brandi dropped to her knees and nailed Bill with an uppercut to the groin, and then got on the mic and told everyone what a looser Bill was!
Up next, Mr. Castle came back to the ring to make the announcement that due to Simply Divosi’s broken clavical that he suffered in an ATV accident over the holidays, the NBWA No-Limits Championship was going to be up for grabs in this next match. The match was between Nick Cuttler, and “The Apex” Blake Steel. Steel made his way to the ring preceded by Anderson Rhodes, and Eric Ruffington, but what came as a shock was that Blake had asked Anderson and Eric to leave ringside, Blake said that he wanted to win the title on his own. This pleased the crowed, who was rather oddly cheering for Blake for the entire match. And what a match it was, it saw both competitors get near falls, and multiple submission holds. In the end Nick Cutler was victorious!
After a short intermission, we get back to the action with a NBWA Tag team Title match between “The Worlds Greatest Masked Tag Team” vs the team of Jeff Harris and Aaron Matthews. It was a fast paced, action packed match that saw yet another betrayal. During the closing moments of the match, a fatigued Cheapshot McGrot was attempting to make a tag to his partner, but Cyclone refused the tag, backing away from the corner, signaling that he wasn’t getting in the match leaving Cheapshot to fend for himself. “Jeff and Aaron” then won the match when Aaron Matthews hit a Shooting Star Press on Cheapshot and then got the 1..2..3!
Next up was the debut of “The Japanese Nightmare” Kahagas, and hi opponent was the 2008 Alberta J. Murray Memorial Champion DaCobra. For those who didn’t see this match you missed a vicious man in action, you can see why Kahagas is called “The Japanese Nightmare”, it not often that you see DaCobra manhandled the way he was in the opening minutes of the match, literally being tossed around like a ragdoll! Following a brief timeout from DaCobra to regroup he re entered the ring using his speed and quickness to combat Kahagas rather than strength. The rest of the match featured quick kicks from DaCobra, and Kahagas always seemed to match DaCobra kick for kick. One advantage Kahagas had was his sickening chops, he must have hit half a dozen bone chilling chop on DaCobra during the early goings of the match. In the final moments of the match Kahagas had DaCobra in the far corner of the ring, and hit a massive headbutt the the chest, and then began to unleash yet another series of vicious chops on DaCobra when DaCobra hit the mat and rolled Kahagas up in a small package for the 3 count.
Following the match the NBWA crowd gave Kahagas a huge round of applause and chanted “Please Come Back”.
Finally, for the main event of the evening, it was the NBWA heavyweight Champion “Bloody” Harker Dirge vs “#1” Jason Vendetta, who was being accompanied to the ring by “Serenity” who we had previously know as Brandi Harris. During the early goings it was all Harker Dirge, that is until some help showed up for Jason Vendetta. Jeff Harris and Aaron Matthews came to the ring to help even the odds for Vendetta. While the referee was busy dealing with Serenity, Aaron had set up a steel chair in the corner of the ring for Vendetta to use to his advantage, and that’s exactly what happened. Vendetta used Harkers Head as a battering ram right into the steel chair, but Harker just wouldn’t quit, kicking out of the pin at a 2 count. It was another foreign object though that spelled the demise of BHD. While referee Tally was busy with Jeff and Aaron Serenity had gotten a pipe wrench from underneath the ring and slid it into Vendetta who then used the wrench to clock Harker right in the temple knocking him out cold. Vendetta went for the cover and got the 3 count!
Winner and new NBWA Heavyweight Champion: Jason Vendetta.
What a day it was at The New Breed Gym, four title changes in all, two betrayal’s, and six brand new faces in the ring!
We welcome everyone to join us on Saturday, February 7th for “Pick Your Poision” begining at 2:00 PM. Go to NBWA Myspace for more info.

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


About the PTAB Life Sciences Report: Each month we will report on developments at the PTAB involving life sciences patents.
Visionsense Corp. v. Novadaq Technologies, Inc.
PTAB Petition: IPR2017-01426; filed May 11, 2017.
Institution of Inter Partes Review; entered November 16, 2017.
Patent at Issue: U.S. Patent No. 8,892,190 ("Method and apparatus for performing intra-operative angiography," issued November 18, 2014) claims a method for assessing blood flow moving through a vessel graft anastomosed in fluid communication with an interconnected group of blood vessels in an animal, the vessel graft and at least a portion of the blood vessels being exposed during a surgical procedure on the animal, the method comprising the steps of: (a) administering a fluorescent dye to the animal such that the dye enters the vessel graft and the interconnected group of blood vessels; (b) exciting the fluorescent dye within the vessel graft and said exposed portion of the interconnected group of blood vessels with a source of illumination, thus causing the dye to emit radiation; (c) capturing the radiation emitted by the fluorescent dye with a camera capable of imaging a series of angiographic images within the vessel graft and said exposed portion of the interconnected group of blood vessels, the images including at least an image of a fluorescent wavefront corresponding to an interface between the flowing blood that first contains the fluorescent dye introduced, such image being captured by the camera as the fluorescent wavefront transitions through the exposed vessel graft and interconnected croup of blood vessels; and (d) evaluating the angiographic images to assess blood flow through the vessel graft relative to blood flow through the interconnected group of blood vessels.
Petitioner Visionsense Corp. is challenging the '190 patent on four grounds as being anticipated under 35 U.S.C. § 102(b) (ground 1) or as obvious under 35 U.S.C. § 103(a) (grounds 2, 3, and 4). View the petition here. Administrative Patent Judges Hyun J. Jung (author), Michael L. Woods, and Amanda F. Wieker issued a decision instituting inter partes review of whether claims 1–3 are unpatentable under 35 U.S.C. § 103(a) over Little, Flower I, and Flower II; whether claims 1–3 are unpatentable under 35 U.S.C. § 103(a) over Flower I, Flower II, and Little or Goldstein; and whether claims 1–3 are unpatentable under 35 U.S.C. § 103(a) over Jibu, Flower I, and Little or Goldstein.
Related Matters: According to the petition, the '190 patent is not involved in any litigation matters.
FlatWing Pharmaceuticals, LLC. v. Anacor Pharmaceuticals, Inc.
PTAB Petition: IPR2018-00168; filed November 21, 2017.
Patent at Issue: U.S. Patent No. 9,549,938 ("Boron-containing small molecules," issued January 24, 2017) claims a method of treating a Tinea unguium infection of a toenail of a human, the method comprising: topically administering to the toenail of the human a pharmaceutical composition comprising 1,3-dihydro-5-fluoro-1-hydroxy-2,1-benzoxaborole or a pharmaceutically acceptable salt thereof in an amount sufficient to treat the infection.
Petitioners FlatWing Pharmaceuticals, LLC, Ragneesh Ahuja, and Wicker Pharmaceuticals, LLC are challenging the '938 patent on four grounds as being obvious under 35 U.S.C. § 103(a). View the petition here.
Related Matters: According to the petition, Petitioners concurrently filed several other inter partes review petitions on related patents, including: IPR2018-00169 (U.S. Patent No. 9,566,289; filed 11/21/2017; pending), IPR2018-00170 (U.S. Patent No. 9,566,290; filed 11/21/2017; pending), and IPR2018j-00171 (U.S. Patent No. 9,572,823; filed 11/21/2017; pending).
PTAB Petition: IPR2018-00169; filed November 21, 2017.
Patent at Issue: U.S. Patent No. 9,566,289 ("Boron-containing small molecules," issued February 14, 2017) claims a pharmaceutical formulation, comprising: 1,3-dihydro-5-fluoro-1-hydroxy-2,1-benzoxaborole, or a pharmaceutically acceptable salt thereof; and a pharmaceutically acceptable topical carrier.
Petitioners FlatWing Pharmaceuticals, LLC, Ragneesh Ahuja, and Wicker Pharmaceuticals, LLC are challenging the '289 patent on six grounds as being obvious under 35 U.S.C. § 103(a). View the petition here.
Related Matters: According to the petition, Petitioners concurrently filed several other inter partes review petitions on related patents, including: IPR2018-00168 (U.S. Patent No. 9,549,938; filed 11/21/2017; pending), IPR2018-00170 (U.S. Patent No. 9,566,290; filed 11/21/2017; pending), and IPR2018j-00171 (U.S. Patent No. 9,572,823; filed 11/21/2017; pending).
PTAB Petition: IPR2018-00170; filed November 21, 2017.
Patent at Issue: U.S. Patent No. 9,566,290 ("Boron-containing small molecules," issued February 14, 2017) claims a method of treating a human having onychomycosis of a toenail caused by Trichophyton rubrum or Trichophyton mentagrophytes, the method comprising: topically administering to the toenail a pharmaceutical composition comprising an amount of 1,3-dihydro-5-fluoro-1-hydroxy-2,1-benzoxaborole or a pharmaceutically acceptable salt thereof, effective to inhibit an aminoacyl tRNA synthetase in the Trichophyton rubrum or Trichophyton mentagrophytes.
Petitioners FlatWing Pharmaceuticals, LLC, Ragneesh Ahuja, and Wicker Pharmaceuticals, LLC are challenging the '290 patent on four grounds as being obvious under 35 U.S.C. § 103(a). View the petition here.
Related Matters: According to the petition, Petitioners concurrently filed several other inter partes review petitions on related patents, including: IPR2018-00168 (U.S. Patent No. 9,549,938; filed 11/21/2017; pending), IPR2018-00169 (U.S. Patent No. 9,566,289; filed 11/21/2017; pending), and IPR2018j-00171 (U.S. Patent No. 9,572,823; filed 11/21/2017; pending).
PTAB Petition: IPR2018-00171; filed November 21, 2017.
Patent at Issue: U.S. Patent No. 9,572,823 ("Boron-containing small molecules," issued February 21, 2017) claims a method of delivering a compound, in a human, from a dorsal layer of a nail plate to a nail bed to treat onychomycosis caused by Trichophyton rubrum or Trichophyton mentagrophytes, the method comprising: contacting the dorsal layer of the nail plate with a pharmaceutical composition comprising a compound that penetrates the nail plate, the compound being 1,3-dihydro-5-fluoro-1-hydroxy-2,1-benzoxaborole or a pharmaceutically acceptable salt thereof, thereby treating onychomycosis due to Trichophyton rubrum or Trichophyton mentagrophytes.
Petitioners FlatWing Pharmaceuticals, LLC, Ragneesh Ahuja, and Wicker Pharmaceuticals, LLC are challenging the '823 patent on four grounds as being obvious under 35 U.S.C. § 103(a). View the petition here.
Related Matters: According to the petition, Petitioners concurrently filed several other inter partes review petitions on related patents, including: IPR2018-00168 (U.S. Patent No. 9,549,938; filed 11/21/2017; pending), IPR2018-00169 (U.S. Patent No. 9,566,289; filed 11/21/2017; pending), and IPR2018-00170 (U.S. Patent No. 9,566,290; filed 11/21/2017; pending).
Taro Pharmaceuticals USA, Inc. v. ApoPharma, Inc.
PTAB Petition: IPR2017-01446; filed May 17, 2017.
Instituted of Inter Partes Review; entered November 28, 2017.
Patent at Issue: U.S. Patent No. 7,049,328 ("Use for deferiprone," issued May 23, 2006) claims a method of treating iron induced cardiac disease in a blood transfusion dependent patient experiencing an iron overload condition of the heart, said method comprising administering to the patient a therapeutically effective amount of deferiprone or a physiologically acceptable salt thereof sufficient to stabilize/reduce iron accumulation in the heart resulting from being transfusion dependent.
Petitioners Taro Pharmaceuticals and Sun Pharmaceuticals are challenging the '328 patent on ten grounds as being anticipated under 35 U.S.C. § 102(b) (grounds 1-5) or as obvious under 35 U.S.C. § 103(a) (grounds 6-10). View the petition here. Administrative Patent Judges Lora M. Green, Jeffrey N. Fredman (author), and Zhenyu Yangs issued a decision instituting inter partes review of whether claims 1, 2, 4-11, 13-17, and 19 are unpatentable under 35 U.S.C. § 102(b) over Hoffbrand; whether claims 1, 2, 4-11, 13-17, and 19 are unpatentable under 35 U.S.C. § 102(b) over the Olivieri Abstract; whether claims 1, 2, 4-11, 13-17, and 19 are unpatentable under 35 U.S.C. § 102(b) over Olivieri; whether claims 1, 2, 4-17, and 19 are unpatentable under 35 U.S.C. § 103(a) over Hoffbrand; whether claims 1, 2, 4-17, and 19 are unpatentable under 35 U.S.C. § 103(a) over the Olivieri abstract; and whether claims 1, 2, 4-17, and 19 are unpatentable under 35 U.S.C. § 103(a) over Olivieri.
Related Matters: According to the petition, the '328 patent is the subject of the following civil litigation: ApoPharma Inc. v. Taro Pharmaceutical Industries, Ltd., No. 2:16-cv-00528 (E.D. Texas).


AQUILINO Q. PIMENTEL, JR., Complainant, v. ATTYS. ANTONIO M. LLORENTE and LIGAYA P. SALAYON, Respondents.
Respondents denied the allegations against them. They alleged that the preparation of the SoVs was made by the 12 canvassing committees which the Board had constituted to assist in the canvassing. They claimed that the errors pointed out by complainant could be attributed to honest mistake, oversight, and/or fatigue.
In his Consolidated Reply, complainant counters that respondents should be held responsible for the illegal padding of the votes considering the nature and extent of the irregularities and the fact that the canvassing of the election returns was done under their control and supervision.
On December 4, 1998, the Integrated Bar of the Philippines, to which this matter had been referred pursuant to Rule 139-B, §13, in relation to §20 of the Rules of Court, recommended the dismissal of the complaint for lack of merit. 3 Petitioner filed a motion for reconsideration on March 11, 1999, but his motion was denied in a resolution of the IBP Board of Governors dated April 22, 1999. On June 4, 1999, he filed this petition pursuant to Rule 139-B, §12(c).
It appears that complainant likewise filed criminal charges against respondents before the COMELEC (E.O. Case No. 96-1132) for violation of R.A. No. 6646, §27(b). In its resolution dated January 8, 1998, the COMELEC dismissed complainant’s charges for insufficiency of evidence. However, on a petition for certiorari filed by complainant, 4 this Court set aside the resolution and directed the COMELEC to file appropriate criminal charges against respondents. Reconsideration was denied on August 15, 2000.
Considering the foregoing facts, we hold that respondents are guilty of misconduct.
First. Respondent Llorente seeks the dismissal of the present petition on the ground that it was filed late. He contends that a motion for reconsideration is a prohibited pleading under Rule 139-B, §12(c) 5 and, therefore, the filing of such motion before the IBP Board of Governors did not toll the running of the period of appeal. Respondent further contends that, assuming such motion can be filed, petitioner nevertheless failed to indicate the date of his receipt of the April 22, 1999 resolution of the IBP denying his motion for reconsideration so that it cannot be ascertained whether his petition was filed within the 15-day period under Rule 139-B, §12(c).
Even in ordinary civil actions, the period for perfecting appeals is relaxed in the interest of justice and equity where the appealed case is clearly meritorious. Thus, we have given due course to appeals even though filed six, 14 four, 15 and three 16 days late. In this case, the petition is clearly meritorious.
The recommendation is unacceptable. In disciplinary proceedings against members of the bar, only clear preponderance of evidence is required to establish liability. 18 As long as the evidence presented by complainant or that taken judicial notice of by the Court 19 is more convincing and worthy of belief than that which is offered in opposition thereto, 20 the imposition of disciplinary sanction is justified..
In this case, respondents do not dispute the fact that massive irregularities attended the canvassing of the Pasig City election returns. The only explanation they could offer for such irregularities is that the same could be due to honest mistake, human error, and/or fatigue on the part of the members of the canvassing committees who prepared the SoVs.
Despite the fact that these discrepancies, especially the double recording of the returns from 22 precincts and the variation in the tabulation of votes as reflected in the SoVs and CoC, were apparent on the face of these documents and that the variation involves substantial number of votes, respondents nevertheless certified the SoVs as true and correct. Their acts constitute misconduct.
Nor does the fact that the canvassing was open to the public and observed by numerous individuals preclude the commission of acts for which respondents are liable. The fact is that only they had access to the SoVs and CoC and thus had the opportunity to compare them and detect the discrepancies therein.
It may be added that, as lawyers in the government service, respondents were under greater obligation to observe this basic tenet of the profession because a public office is a public trust.
Third. Respondents’ participation in the irregularities herein reflects on the legal profession, in general, and on lawyers in government in particular. Such conduct in the performance of their official duties, involving no less than the ascertainment of the popular will as expressed through the ballot, would have merited for them suspension were it not for the fact that this is their first administrative transgression and, in the case of Salayon, after a long public service. 29 Under the circumstances, a penalty of fine in the amount of P10,000.00 for each of the respondents should be sufficient.
WHEREFORE, the Court finds respondents Antonio M. Llorente and Ligaya P. Salayon GUILTY of misconduct and imposes on each of them a FINE in the amount of P10,000.00 with a WARNING that commission of similar acts will be dealt with more severely.
1.	Batas Pambansa Blg. 881, §221(b). The third member of the Board, Ceferino Adamos, now deceased, was the Clerk of Court of the Pasig City Metropolitan Trial Court.
2.	SEC. 27. Election Offenses. — In addition to the prohibited acts and election offenses enumerated in Section 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense.
(b)	Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election . . .
4.	Pimentel, Jr. v. COMELEC, G.R. No. 133509, Feb. 9, 2000.
(c)	If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board’s resolution, the Supreme Court orders otherwise.
6.	253 SCRA 1 (1996).
8.	Counted from May 18, 1999, the 15th day falls on June 2, 1999.
9.	Tajan v. Cusi, Jr., 57 SCRA 154 (1974); In re Almacen, 31 SCRA 562 (1970); Rayos-Ombac v. Rayos, 285 SCRA 93 (1998).
10.	See Pangan v. Ramos, 107 SCRA 1 (1981); In re Del Rosario, 52 Phil. 399 (1928).
11.	Calo v. Degamo, 20 SCRA 447 (1967).
12.	In re: Victorio D. Lanuevo, 66 SCRA 245 (1975).
13.	Agripino Brillantes, 76 SCRA 1 (1977).
14.	Republic v. Court of Appeals, 83 SCRA 453 (1978).
15.	Ramos v. Bagasao, 96 SCRA 395 (1980).
16.	Philippine National Bank v. Court of Appeals, 246 SCRA 304 (1995).
17.	IBP Report, p. 5; Rollo, p. 121.
18.	In re Tionko, 43 Phil. 191 (1922); Re. Agripino A. Brillantes, 76 SCRA 1 (1977).
19.	See Prudential Bank v. Castro, 155 SCRA 604 (1987); Richards v. Asoy, 152 SCRA 45 (1987).
20.	Republic v. Court of Appeals, 160 SCRA 161 (1991).
21.	G.R. No. 133509, Feb. 9, 2000.
23.	E.g., Tatlonghari v. Commission on Elections, 199 SCRA 849 (1991); Angelia v. Tan, G.R. No. 135468, May 31, 2000.
25.	Gonzales-Austria v. Abaya, 176 SCRA 634 (1989).
26.	Collantes v. Renomeron, 200 SCRA 584 (1991); (Gonzales-Austria v. Abaya, 176 SCRA 634 (1989); See RUBEN AGPALO, LEGAL ETHICS 425 (4th ed., 1989).
27.	158 SCRA 497 (1988).
29.	She first served in the lower courts before working in the Supreme Court from 1981-1990 (Comment, p. 5; Rollo, p. 48).


How I Learned to Love FAIR USE or how to bring a $300,000 lawsuit down to $0 if you’re a library, archive, or nonprofit educational institution.
When I give seminars to librarians on copyright, the most popular question is: “What happens if we get sued? How much money are we talking about?” Answer? In ever popular lawyer-speak, “It depends.” The good news for libraries, archives, and nonprofit educational institutions, is that a good understanding and application of Fair Use can reduce your liability down to $0. This article aims to help you evaluate a given situation involving the fair use of copyrighted materials.
“Fair Use?” , you say. “Absolutely. Everything we do is Fair Use. That is, we think it’s fair.” That kind of thinking won’t go too far in court. Although Fair Use is the grayest area of copyright law (I always color my PowerPoint slides on Fair Use gray), 17 U.S.C. § 107 outlines criteria including four specific factors that courts weigh to determine if what you’ve done would lawfully be considered Fair Use.
When considering whether or not you’ve infringed on someone’s copyright, you’ll first want to make the case that you are innocent of infringing which means you should look at sections of U.S. copyright law that directly protect libraries, archives and some educational institutions. See especially, 17 U.S.C. § 108 and § 110. If your use isn’t covered (be sure to also look through other user exceptions from § 109 – § 122), you’ll want to look at Fair Use, the slipperiest defense in copyright law, § 107 .
Q: Before we get to Fair Use, I’d like to know — can I go to jail if I unintentionally infringe on someone’s copyright?
Only willful copyright infringement is a federal crime, punishable by imprisonment, fines or both. If you willfully copy or distribute by electronic or other means a work with a retail value of $1,000 but less than $2,500, you could be imprisoned up to one year and/or fined. See § 506. The terms go up if the infringement is greater.
The Digital Millennium Copyright Act added criminal penalties to persons who circumvent (loose definition: hackers) copyright protection systems or mess with copyright management information. Not only must your actions be willful, but there’s a specific provision exempting nonprofit libraries, archives, and educational institutions from criminal liability. See § 1204. They may be accountable for civil remedies, although there’s a particularly odd provision that allows them to hack copyright protection systems if done, “solely in order to make a good faith determination of whether to acquire a copy of that work” See § 1201(d).
Q: How much money could I be sued for in a civil copyright lawsuit?
A: If the lawsuit is for a work that has been registered at the Copyright Office, the damages can be quite stiff. A copyright owner may elect to recover statutory damages under § 504, even if she can’t show any lost profits. Statutory damages are amounts set by law. A copyright owner whose work was registered with the U.S. Copyright Office before the infringement (or within three months of publication) can elect to choose statutory damages or actual damages. Actual damages (also known as compensatory damages) are the dollar amount of any demonstrable loss suffered because of the infringement. Most copyright owners will choose statutory over actual damages because there is less to prove in order to obtain payment. If you’re found to be an infringer (and don’t have reasonable ground to believe your use was Fair Use), statutory damages are set by law at a minimum of $750 and a maximum of $30,000 per infringement, “as the court considers just.” If the court finds that you’ve infringed on ten photographs that have registered copyrights, for example, you may be facing a $300,000 lawsuit. If the copyright owner can prove that the infringement was committed willfully, the court has the discretion to increase the damages up to $150,000 per infringement. Further, the court may determine that the losing party must pay the winner’s costs and attorneys fees, under § 505. On the other hand, if the infringer can prove that she was not aware and had no reason to believe the act was infringement, the court may reduce the award down to $200.
Fair Use is codified in U.S. Copyright law at 17 U.S.C. § 107. It states that the Fair Use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.
The bad news is that even after careful consideration whenever you try to figure out if what you want to do is Fair Use you will most likely still be left with a giant gray area. The good news is that with some study of the four nonexclusive factors which form a framework to make your evaluations, your good faith effort may help enormously if you get sued.
Note: Although it is quite helpful to be a nonprofit library, archives or educational institution, the purpose of the use should also be nonprofit educational.
Note: Of special interest to libraries, archives and educational institutions is a recent 9th Circuit decision that found this factor in favor of an operator of a visual search engine. Arriba-Soft was sued by a professional photographer whose photographs were copied (in thumbnail form). The court said that the search engine was designed to “catalog and improve access to images on the Internet,” and was thus considered a “transformative use” (i.e., it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.) Further, the thumbnail form made it unlikely that users would enlarge the images for the original, artistic purpose because of the low quality. Kelly v. Arriba-Soft, 03 C.D.O.S 5888 (9thCir. 2003).
Note: Reference works, science, other works that are primarily factual have elements that are not copyrightable.
Note: Highly creative works, such as poetry, fiction, and art are really pure expression, and as such enjoy greater protection.
Note: This surprises some librarians, who keep rich local history files, filled with unpublished letters, photographs etc. Yet copyright law favors the right of the copyright owners (including heirs) to make the decision whether or not to publish their work.
Note: This is measured in proportion to the size of the original. This was easier to measure in the print world than online.
Note: A classic example here is taking the key moment from the I Love Lucy episode where Lucy is trying, in vain, to keep up with a fast moving chocolate candy conveyer belt.
– The more that is takeneither in proportional size or importancethe more difficult it is to claim fair use.
Note: If you can demonstrate that your use doesn’t deprive the copyright owner of income, you’re more likely to persuade a judge regarding this factor.
Note: A 1994 Supreme Court decision says that the market factor is only one of the four factors, and not more important. The reality is that courts often weigh this factor much more heavily than the other three so beware if your use undermines an existing or potential market for the work.
Q: How will I know if what I’m doing is Fair Use?
tch perfectly with a previous court case in your jurisdiction, this is what you need to do. Remember, though, that if you work for a nonprofit educational institution, library, or archives and are acting within the scope of employment, your statutory damages could go down to $0. You must show that you believed and had reasonable grounds for believing that your use was Fair Use. Keep track of your analyses, item by item. A handy way to do this is to use the Fair Use Checklist developed by Kenneth Crews at the Copyright Management Center of Indiana University.
Q: How do I find out more about how to handle a lawsuit against me?
Most copyright owners will send a “cease and desist” letter to you before filing a lawsuit. A new joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law school clinics,Chilling Effects Clearinghouse, is incredibly helpful in understanding these letters and their legal terminology. Samples of real “cease and desist letters” are posted.
Another important note is to check your institution’s insurance policy to make sure it adequately covers copyright lawsuits. If it does, be sure to contact your insurance company before spending money on attorneys. In a recent New York case, a sunglass company paid some legal fees to a law firm it had hired to litigate a patent infringement case. Its insurance company would have paid the fees if it had been approached initially, but would not pay after the fact. Darby & Darby v. VSI, 701 N.Y.S.2d 50 (2000). For an overview of how to handle a copyright infringement lawsuit against you, including insurance, see Mark H. Miller’s Copyright Infringement: What It Is; What to Do If You’re Accused of It (Jackson Walker LLP: 2000).
Note: Attributionthat is giving credit to the copyright ownerwill not relieve you of a claim of infringement.
and the effect of the use upon the potential market for or value of the copyrighted work.
1Also, everybody seems to throw the term “Fair Use” around casually at parties. With a little learning, you can be the only one there to use it correctly. This might even help you land your next job.
2A jury recently awarded a photographer $400,000 from the nonprofit National Geographic Society when it digitized four photographs for its, “108 Years of National Geographic on CD-ROM” collection, Greenberg v. National Geographic Society ,U.S. District Court, Miami FL (March 2003). See American Society of Media Photographers, Inc.http://www.asmp.org/news/spec2003/greenberg.shtml National Geographic says it will appeal the decision, which was already on remand from an 11th Circuit opinion in favor of the photographer. Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001).
3 Snippets like this license for small fortunes. If you happen to find someone else has blatantly posted it on the Internet, stop and turn away. These works are strongly protected by copyright and the fact that you are not the original thief has no bearing.
4 Campbell v. Acuff-Rose Music, 510 US 569 (1994).
5 Okay, maybe thats not the worlds best memory trick, but its worked for me and some folks I’ve shared it with for years. Maybe you can gussy it up, like “Please, Not Another Muffin!” One workshop participant changed the “M” to and “E”, did a little rearranging and suggested PANE – purpose, amount, nature and economic impact. Then you can tell yourself that Fair Use analysis is a PANE. If it is, its a muddy pane.