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The Ombudsman investigated a complaint about two information sessions on March 7, 2018 attended by a quorum of council for the Village of Casselman. During these sessions, the council members in attendance received information and updates with respect to the business of the municipality. However, his investigation did not uncover evidence that the council members in attendance at the sessions “materially advanced” the business or decision-making of council. These sessions were therefore not “meetings” under the definition in the Municipal Act, 2001 that came into force on January 1, 2018. In the interests of openness and transparency, the Ombudsman suggested that council members receive information and updates about the business of the municipality during public meetings of council.
My Office investigated a complaint about two information sessions on March 7, 2018 attended by a quorum of council for the Village of Casselman. During these sessions, the council members in attendance received information and updates with respect to the business of the municipality. However, my investigation did not uncover evidence that the council members in attendance at the sessions “materially advanced” the business or decision-making of council.
These sessions were therefore not “meetings” under the definition in the Municipal Act, 2001 that came into force on January 1, 2018. In the interests of openness and transparency, I suggest that council members receive information and updates about the business of the municipality during public meetings of council.
1 On March 19, 2018, my Office received a complaint alleging that council for the Village of Casselman violated the open meeting provisions of the Municipal Act, 2001 when a quorum of council attended two information sessions on March 7, 2018 relating to the business of the municipality.
4 The Ombudsman is the closed meeting investigator for the Village of Casselman.
5 When investigating closed meeting complaints, we consider whether the open meeting requirements of the Act and the municipality’s governing procedures have been observed.
6 On March 29, 2018, my Office issued a notice in accordance with section 18(1) of the Ombudsman Act that we would be investigating this complaint.
7 Members of my Office’s staff reviewed relevant correspondence and documentation relating to two information sessions that took place on March 7, 2018.
8 My Office spoke with the Mayor, the Acting Clerk and the Acting Chief Administrative Officer (CAO). We also interviewed third parties who attended the information sessions.
9 My Office previously reviewed five closed meeting complaints about the Village of Casselman.
10 In a June 12, 2013 letter, my Office found that council members did not violate the open meeting provisions of the Municipal Act, 2001 when they gathered together prior to council meetings on three occasions, as council did not exercise its authority or lay the groundwork to do so during these gatherings. We did note, however, the problems inherent in informal gatherings of council members, in particular when a quorum of council is present.
11 A February 2015 report from my Office found that council members did not violate the Act when the newly elected council met informally for dinner several weeks prior to their swearing-in. However, my Office did find that a written direction to staff signed by a quorum of council in office at the time was an illegal meeting. We noted the problems inherent in serial meetings and recommended that the village cease the practice. We also noted issues with the procedure by-law and recommended that the village specifically provide for notice of regular and special meetings.
12 An April 2015 report from my Office found that a gathering of a quorum of council with a group of developers at a local restaurant was, in effect, a closed meeting of council in contravention of the open meeting provisions of the Act. We recommended that the village adopt written guidelines to ensure that council and committee members are educated on and fully understand the open meeting requirements, that council be vigilant in adhering to its obligations under the Act, and that the village amend its procedure by-law to explicitly provide for notice to the public of special meetings.
13 In a January 29, 2016 letter, my Office found that council for the village did not violate the open meeting requirements when it discussed a consultant’s report in two closed sessions under the personal matters exception. However, we made best practice suggestions that the village improve its resolutions to go into closed session and ensure greater consistency in its reporting back in open session.
14 In a June 2018 report, I found that council for the village did not violate the open meeting rules when it went into closed session to discuss human resources matters on January 8, 2018 and when a quorum of councillors had informal discussions at town hall on January 11, 2018. However, I made best practice suggestions relating to the village’s closed meeting procedures.
15 Two information sessions took place on March 7, 2018 at Centre Paul-Émile Levesque in Casselman, one in the morning and one in the afternoon.
17 The first information session on March 7, 2018 took place at 9:00 a.m. The Acting CAO’s March 5, 2018 email said this session was to “discuss the draft additional fees for the northwest bank of the river”, referring to the construction of a residential development and sanitary sewage system along the South Nation River. In attendance were representatives from an engineering consulting firm, two staff members, and three out of five members of council (Mayor Conrad Lamadeleine, Councillor Marcel Cléroux and Councillor Daniel Lafleur).
18 According to the engineering consultant, the information session was set up by the Acting CAO to share information with the Village about a development charges and sewer charges study. Council had commissioned the study in early 2017. During the information session, the engineering consultant provided a status update on the study and explained the Development Charges Act process.
19 Under the Development Charges Act, municipal councils are required to complete a development charges study prior to passing a development charges by-law. The study must be made available for public consultation for at least 60 days prior to the passing of a development charge by-law.
20 The Mayor and the engineering firm’s representative both stated that there was no discussion among the members of council who attended the information session, and no decisions were made. The engineering firm’s representative did most of the talking and explained the methodology of the study. He stated that the members of council in attendance wanted to understand the math and the approval process. According to the engineering consultant, it is not uncommon for elected officials to attend such information sessions.
21 The documentation for this information session consisted of complex tables of calculations setting out the math behind the study.
22 The second information session on March 7, 2018 took place at 1:30 p.m. The Acting CAO’s March 5, 2018 email said this session was to “discuss the completion of the subdivision.” In attendance were representatives from a development company, two staff members, and the same three councillors.
23 According to a representative from the development company who attended the information session, it was set up by the Acting CAO to provide an update to the Village about an ongoing residential development project. The project had been underway for several years. During the information session, the developer explained the expected timelines for the completion of the project.
24 The Mayor and the developer both stated that there was no discussion among the members of council who attended the information session, and no decisions were made. The meeting was simply to provide an update on the progress of construction. According to the developer, it is not uncommon for elected officials to attend update sessions, while technical meetings and information are shared directly with staff.
25 There was no documentation related to this information session.
(b) members discuss or otherwise deal with any matter in a way that materially advances the business or decision-making of the council, local board or committee.
27 This complaint presents the first opportunity for me to interpret this new definition of “meeting”. Following the framework for statutory interpretation set out by the Supreme Court of Canada, the word “meeting” must be understood not only in its ordinary sense, but also according to the way it is used and in light of the objectives of open meeting legislation.
28 Throughout my Office’s open meeting investigations, quorum has been an important factor in determining whether a meeting has occurred. This part of the definition generally speaks for itself.
29 However, the expression “materially advances the business or decision-making of council” requires particular attention. To assist me in my interpretation, I have looked to legislative debates and committee hearings, and relevant case law. I have also drawn on previous closed meeting investigator reports where relevant.
30 My analysis, set out below, leads me to conclude that the interpretation of “materially advances” involves considering the extent to which the discussions at issue moved forward the business of the municipality, based on factual indicators.
31 Discussions, debates or decisions that are intended to lead to specific outcomes or to persuade decision-makers one way or another are likely to “materially advance” the business or decision-making of a council, committee or local board. Mere receipt or exchange of information is unlikely to “materially advance” business or decision-making, as long as there is no attempt to discuss or debate that information as it relates to a specific matter that is or will be before a council, committee or local board.
33 While the legislative intent behind the new definition was to avoid capturing informal discussions among a handful of councillors, the debate in the Legislature and submissions made to Standing Committee indicate that the definition – in particular the meaning of the term “materially advances” – remains somewhat unclear.
34 Despite the apparent lack of a clear English interpretation of “materially advances”, the French definition of “meeting” in the Act provides a better idea of what the legislature intended. The French version of the Act translates “materially advances” as “qui fait avancer de façon importante”. This can be readily translated as “significantly advances”.
35 Interpreting “materially advances” as “significantly advances” is consistent with court decisions addressing procedural and evidentiary matters, which often speak to whether or not something “materially advances” a proceeding, argument, or cause of action.
36 Applying this interpretation of “materially advances” requires determining what does and does not in fact significantly move the business or decision-making of council forward.
38 The various interpretations by closed meeting investigators of what does and does not constitute a meeting in those investigations were drawn from a line of court decisions dealing with meetings of local public bodies: Vanderkloet et al v Leeds & Grenville County Board of Education; Southam Inc. v Hamilton Wentworth (Regional Municipality) Economic Development Committee; Southam Inc. v. Ottawa (City) Council; Yellowknife Property Owners Assn. v. Yellowknife (City of); Aitken v. Lambton Kent District School Board; and, 3714683 Canada Inc. v. Parry Sound (Town).
40 The prior closed meeting investigations and the open meeting court decisions provide factual indicators of the content of “materially advances”. For example, updates on recent activities and mere communication of information are not as likely to be considered as materially advancing business or decision-making.
41 However, a council, committee or local board is likely to be materially advancing its business or decision-making – and therefore be subject to the open meeting requirements of the Municipal Act, 2001 – when, for example, it votes, reaches an agreement, provides direction or input to staff, or discusses or debates a proposal, course of action, or strategy.
42 Three members of council were present at each of the information sessions on March 7, 2018. This constitutes a quorum of council for the Village of Casselman.
43 However, my investigation did not uncover any evidence that the members of council who attended the two information sessions on March 7, 2018 materially advanced the business or decision-making of council.
44 The morning’s development charges session was informative in nature. The study had been commissioned by council in 2017. Council members did not have any input into the study. A new development charges by-law would only come before council upon the conclusion of the statutory public consultation process set out in the Development Charges Act. This process had not yet begun at the time of the March 7, 2018 meeting. The council members in attendance did not discuss or debate the study, or make any decisions with respect to development charges.
45 This case can be distinguished from the situation described by Local Authority Services in its report into the Township of Madawaska Valley. In that case, council went into closed session for three hours to discuss a development charges study report. While the investigator found that there was an education component involving the purpose and process of development charges, the bulk of the in camera session was to hear the findings of the study and to outline specific options available to the municipality. The investigator found that council members debated the options and encouraged other members to support particular positions, which ran afoul of the “education or training” exception that council had invoked to close the meeting. Other elements of the meeting could have been properly discussed in closed session under other exceptions.
46 In this case, there is no indication that the council members discussed options with respect to development charges. They only received information about the methodology of the report and about the statutory process under the Development Charges Act.
47 The afternoon’s residential development update session was also informative in nature. Council’s decision to proceed with the development preceded the meeting by several years. The council members in attendance did not discuss or debate the development project, or make any decisions with respect to the project.
48 The two information sessions held on March 7, 2018 were not “meetings” as defined in the Municipal Act, 2001. Though a quorum of council attended each session, the sessions involved only the communication of information and updates on recent activities, and thereby did not “materially advance” the business or decision-making of council.
49 In the interests of openness and transparency, however, information and updates about the business of the municipality should whenever possible be received by council members during public meetings.
50 My report should be shared with council and made available to the public as soon as possible, and no later than the next council meeting.
 Letter from Ombudsman of Ontario to Village of Casselman (June 12, 2013), online.
 Ombudsman of Ontario, Investigation into whether Council for the Village of Casselman held illegal closed meetings in November 2014 (March 2015), online.
 Ombudsman of Ontario, Investigation into whether Council for the Village of Casselman held an illegal closed meeting on January 8, 2015 (April 2015), online.
 Letter from Ombudsman of Ontario to Village of Casselman (January 29, 2016), online.
 Investigation into a complaint about a January 9, 2018 meeting and a January 11, 2018 discussion among councillors for the Village of Casselman (June 2018), online.
 Original in French: "Ce n’est rien d’officiel on ne fait que voir ce qu’ils proposent."
 Original in French: “…pour discuter de l’ébauche pour les frais aux existant du côte nord-ouest de la rivière."
 Development charges are fees collected from developers to help pay for infrastructure required to provide municipal services to a new development. Sewer charges are collected from property owners who benefit from wastewater infrastructure.
 Original in French: “…pour discuter sur l’achèvement de la subdivision."
 Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para 26.
 Section 237 of the Act defines “quorum”. Other provisions of the Act refine this definition, for example with respect to electronic participation in meetings (s 238(3.1)).
 Bill Mauro, then-Minister of Municipal Affairs, Bill 68 – Second Reading Debate – November 29, 2016. See also: Dipika Damerla, then-Minister of Seniors Affairs, Bill 68 – Second Reading Debate – March 8, 2017.
 See, for example: Muckpaloo v. Mackay, 2002 NWTSC 12 at paras 16-24; Boland v Carew, 2018 ABQB 317 at para 13.
 At least a dozen closed meeting investigations addressed these issues. See, for example: Local Authority Services, Report to the Corporation of the County of Essex (September 2009); Lorne Sossin, Open Meeting Investigation: Request to Investigate 2008-2009 Budget Committee Process (February 2010); Local Authority Services, Report to the Corporation of the Municipality of French River (March 2011); Local Authority Services, Report to the Corporation of the Township of Brock (September 2015); Ombudsman of Ontario, Investigation into closed meetings held by the Township of Russell on August 10, 2015 (January 2016); Ombudsman of Ontario, Investigation into the closed meeting held by the City of Brockville’s OPP Contact Adhoc Committee on March 7, 2016 (July 2016).
 1985 CanLII 1976 (ON CA).
 1988 CanLII 4709 (ON CA).
 1991 CanLII 7044 (ON Div Ct).
 1998 CanLII 6961 (NWT SC).
 2002 CarswellOnt 2577 (ON Div Ct).
 2004 CanLII 47775 (ON SC).
 The engineer’s development charges report appears to have been made public on April 20, 2018.
 Local Authority Services, Report to the Corporation of the Township of Madawaska Valley (June 2013).


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On May 12, 2003, petitioner began this pet-holdover proceeding by serving respondents with copies of a notice of petition and petition. Petitioner alleges that respondents are harboring a dog in their studio apartment.
Respondents move to dismiss this proceeding. Respondents argue that petitioner failed to serve them properly with copies of the petition and notice of petition. Respondents submit a July 14, 2003, affidavit of undertenant Tracy Kahn. Kahn states that she was in her studio apartment on May 12, 2003, at 7:22 p.m., when Neil Schrager, the process server, claims to have effectuated conspicuous service. Kahn avers that it was impossible for schrager to have attempted personal service before he resorted to conspicuous service. According to Kahn, if Schrager had attempted to serve copies of the notice of petition and petition personally, she would have heard him knock on the door of the studio apartment. To corroborate that she was in her studio apartment at the relevant time period, Kahn submits a telephone bill. The telephone bill shows that she was on the telephone for 26 minutes at 6:19 p.m. and again at 7:23 p.m. for two minutes. She argues that at 7:22 p.m., when she was off the telephone, she would have heard Schrager knock on the door and would have opened it and received copies of the petition and notice of petition. Kahn claims that later that evening, when she left the studio apartment to take the garbage out, she discovered copies of the petition and notice of petition affixed to her studio apartment’s door.
petitioner argues that respondents present a conclusory denial of a knock on the door and that respondents do not deny any relevant facts in Schrager’s affidavit of service.
Petitioner argues that Schrager properly served the petition and notice of petition and that respondents’ denial of receipt is insufficient to rebut this presumption. Petitioner submits an affidavit from Schrager, who swears that he knocked on the door and rang the bell.
As this court promised at oral argument, this court read every case to which petitioner cited in its three sets of papers on the topic. The cases most on point are discussed below.
Petitioner cites a series of cases for the proposition that proof of proper mailing creates a presumption of receipt. (See Kihl v. Pfeffer, 94 NY2d 118, 122 ; News Syndicate Co. v. Gatti Paper Stock Corp., 256 NY 211, 215-216; Engel v. Lichterman, 95 AD2d 536, 540-545 [2d Dept 1983] affd 62 NY2d 943, 944 [1984, mem].) But the issue before the court has nothing to do with mailings. Petitioner also cites cases that 782, 783[2d Dept 2000, mem]; Conforti v. Goradia, 234 AD2d 237, 237-238 [1st Dept 1996, mem [Matter of Baer v. Lipson, 194 AD2d 787, 787[2d Dept 1993, mem], appeal dismissed 83 NY2d 788 ; Olmo v. Olmo, 102 AD2d 864, 865 [2d Dept 1984, mem]; 349 E. 49th St. Equities Ltd. v. Vought, NYLJ, May 27, 1982, at 5, col 4 [App Term 1st Dept]; Eichenholz v. Silberfeld-Eichenholz, NYLJ, Oct. 31, 1991, at 27, col 3 [Sup Ct, Queens County.]) But respondents do not deny that service was attempted; respondents contend only that Schrager did not fully knock, and thus that Schrager did not use reasonable application to effect personal service.
Petitioner also cites cases that a conclusory denial of receiving process is insufficient to rebut service. (See Lichtman v. Mount Judah Cemetery, 269 AD2d 319, 320 [1st Dept 2000, mem]; Greiff v. Liebman, NYLJ, Feb. 10, 1988, at 6, col 1 4[App Term 1st Dept, per curiam]; Denning v. Lettenty, 48 Misc 2d 185, 185 [Sup Ct, NY County 1965].) But respondents’ allegations are supported by facts. Petitioner also cites a case in which the court held that proper service negates a deficiency in a process server’s affidavit. (See Morrissey v. Sostar, S.A., 63 AD2d 944, 944 [1st Dept 1978, mem].) But respondents challenge the veracity of Schrager’s affidavit, not any deficiency in it. Finally, petitioner cites a case that an affidavit from a person without personal knowledge is worthless. (See Hasbrouck v. City of Gloversville, 102 AD2d 905, 905 [3d Dept 1984, mem], affd 63 NY2d 816, 816 [1984, mem].) But Kahn’s affidavit is based on personal knowledge.
Kahn’s affidavit calls into question Schrager’s resort to conspicuous service and is not based on conclusory allegations. She states that she was in the studio apartment on May 12, 2003, at 7:22 p.m., when Schrager resorted to conspicuous service. By submitting a copy of her telephone bill, Kahn corroborated her statement that she was in the apartment. The telephone bill demonstrates that she was off the phone at 7:22 p.m. and would have heard Schrager knocking on the door. Although Schrager’s affidavit notes he effected service when she would have been dialing the telephone, respondents have created an issue of fact about whether Schrager engaged in a reasonable attempt to serve personally before resorting to conspicuous service. Respondents are therefore entitled to a traverse hearing to resolve the issue of service. It is possible that the hearing judge will conclude, as petitioner argues, that Kahn missed the knock at the door because she was on the telephone in her studio apartment. The resolution of that issue is for the traverse court, however, and not for this motion court on the cold papers.
This matter is adjourned to August 21, 2003, Part C, Room 844, 9:30 a.m., for a traverse hearing. If traverse is overruled, the proceeding shall be referred to Part C for all purpose.
This opinion is the court’s order and decision.

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This is a list of my research publications to date. For bibliometric data, see my Google Scholar page.
V. Acrețoaie, H. Störrle, D. Strüber: Model Transformation for End-User Modelers with VMTL. In: Proc. ACM/IEEE 19th International Conference on Model Driven Engineering Languages and Systems (MODELS’16), pp. 305. ACM (2016).
V. Acrețoaie, H. Störrle, D. Strüber: VMTL: a language for end-user model transformation. Software & Systems Modeling, 2016.
D. Strüber, J. Plöger, V. Acrețoaie: Clone Detection for Graph-Based Model Transformation Languages. In: Proc. 9th International Conference on Model Transformation (ICMT’16), vol. 9765 of LNCS, pp. 191-206. Springer International Publishing (2016). Best Paper Award.
V. Acrețoaie, H. Störrle, D. Strüber: Transparent Model Transformation: Turning Your Favourite Model Editor into a Transformation Tool. In: Proc. 8th International Conference on Model Transformation (ICMT’15), vol. 9152 of LNCS, pp. 121-130. Springer International Publishing (2015).
V. Acrețoaie, H. Störrle: Efficient Model Querying with VMQL. In: Proc. 1st International Workshop on Combining Modelling with Search- and Example-Based Approaches (CMSEBA’14), vol. 1340 of CEUR-WS, pp. 7-16. CEUR-WS (2014).
V. Acrețoaie, H. Störrle: Hypersonic: Model Analysis and Checking in the Cloud. In: Proc. 2nd Workshop on Scalability in Model Driven Engineering (BigMDE’14), vol. 1206 of CEUR-WS, pp. 6-13. CEUR-WS (2014).
H. Störrle, V. Acrețoaie: Querying Business Process Models with VMQL. In: Proc. 5th ACM SIGCHI Annual International Workshop on Behaviour Modelling – Foundations and Applications (BMFA’13), pp. 4:1-4:10. ACM (2013).
V. Acrețoaie: Delivering the Next Generation of Model Transformation Languages and Tools. In: PhD Students Workshop, 9th European Conference on Modelling Foundations and Applications (ECMFA’13). 2013.
V. Acrețoaie, H. Störrle: MQ-2: A Tool for Prolog-based Model Querying. In: Joint Proc. co-located Events at the 8th European Conference on Modelling Foundations and Applications (ECMFA’12), pp.328-331. Technical University of Denmark (2012).
C.B. Pop, V.R. Chifu, I. Salomie, M. Dinsoreanu, T. David, V. Acrețoaie, A. Nagy, C. Oprisa: Biologically-inspired clustering of semantic Web services. Birds or ants intelligence?. In: Concurrency and Computation: Practice and Experience, vol. 24, pp. 619-633. John Wiley and Sons (2012).
C.B. Pop, V.R. Chifu, I. Salomie, M. Dinsoreanu, T. David, V. Acrețoaie: Semantic Web Service Clustering for Efficient Discovery Using an Ant-based Method. In: Studies in Computational Intelligence, vol. 315, pp. 23-33. Springer (2010).
C.B. Pop, V.R. Chifu, I. Salomie, M. Dinsoreanu, T. David, V. Acrețoaie: Ant-Inspired Technique for Automatic Web Service Composition and Selection. In: Proc. 12th International Symposium on Symbolic and Numeric Algorithms for Scientific Computing (SYNACS 2010), pp. 449-455. IEEE (2010).
V. Acrețoaie, E. Caron, C. Tedeschi: A Practical Study of Self-Stabilization for Prefix-Tree Based Overlay Networks. In: Workshop Proc. 2010 International Conference on High Performance Computing and Simulation (HPCS’10), pp. 341-347. IEEE (2010).
S.O. Marinescu, D. Tămaș-Selicean, V. Acrețoaie, P. Pop: Timing Analysis of Mixed-Criticality Hard Real-Time Applications Implemented on Distributed Partitioned Architectures. In: Proc. 17th IEEE International Conference on Emerging Technologies & Factory Automation (ETFA’12), pp. 1-4. IEEE (2012).

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On June 20, 2016, the Supreme Court announced its decision in Cuozzo Speed Technologies, LLC v. Lee, unanimously affirming the “broadest reasonable construction” claim interpretation standard used by the United States Patent and Trademark Office during inter partes review (“IPR”) proceedings. The Supreme Court also affirmed that the Patent Office’s decision whether to institute IPR is not subject to judicial review. Cuozzo Speed Techs. v. Lee, --- S. Ct. ----, No. 15-446 (June 20, 2016).
Cuozzo Speed Technologies, LLC (“Cuozzo”) owns U.S. Patent No. 6,778,074 (the “′074 patent”). In 2012, Garmin International, Inc. and Garmin USA, Inc. (collectively, “Garmin”) petitioned the United States Patent and Trademark Office (“PTO”) for inter partes review (“IPR”) of claim 17 of the ′074 patent. The PTO granted Garmin's petition and instituted IPR for claim 17, as well as claims 10 and 14 on which claim 17 depends. The Patent Trial and Appeal Board (“PTAB”) issued a final decision finding claims 10, 14, and 17 obvious. Cuozzo appealed PTAB’s decision to the Federal Circuit, arguing that the PTAB improperly instituted inter partes review with respect to claims 10 and 14 (which were not the subject of the initial petition), and that the PTAB improperly used the “broadest reasonable construction” standard to interpret the claims rather than the standard used by courts, which gives claims their “ordinary meaning . . . as understood by a person of skill in the art . . . .” Phillips v. AWH Corp., 415 F. 3d 1303, 1314. The Federal Circuit rejected both arguments, stating that 35 U.S.C. §314(d) made the Patent Office’s decision to institute inter partes review “final and nonappealable.” The Federal Circuit also concluded that the Patent Office’s claim construction standard was a reasonable exercise of the agency’s rulemaking authority under the Chevron doctrine. See In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275-76 (Fed. Cir. 2015).
The America Invents Act (“AIA”), which created IPR proceedings, itself, is silent on the claim construction standard to be used in IPRs. Instead, the statute conveys rulemaking authority to the PTO, providing that “[t]he Director shall prescribe regulations . . . setting forth the standards for the showing of sufficient grounds to institute ... review” and “establishing and governing inter partes review . . . and the relationship of such review to other proceedings under” the patent law. 35 U.S.C. § 316(a)(2). Under this rulemaking authority, the PTO promulgated 37 C.F.R. § 42.100(b), which provides that “[a] claim in an unexpired patent shall be given its broadest reasonable construction in light of the specification of the patent in which it appears.” 37 C.F.R. § 42.100(b).
The Supreme Court unanimously affirmed the Federal Circuit’s findings that the PTO had the rulemaking authority to use the “broadest reasonable construction” standard. Applying the framework the Supreme Court set forth in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., the Court first considered whether the AIA leaves an ambiguity or gap that allows the agency to enact rules. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Rejecting Cuozzo’s argument that IPR proceedings should be considered as a “surrogate for court proceedings” and thus that Congress must have intended the PTAB to use the same standard as in district court proceedings, the Court found that 35 U.S.C. §316(a)(4) “expressly authorizes the Patent Office to engage in the process of rulemaking” that governs IPR proceedings. Cuozzo, Slip op. at 13 (citing United States v. Mead Corp., 533 U.S. 218, 229 (2001)). The Court then turned to the second step of Chevron’s analysis, which asks whether the agency’s rulemaking was reasonable or whether it was “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844. The Court rejected Cuozzo’s argument that the “broadest reasonable construction” standard is unreasonable because it can lead to inconsistencies between the outcome of IPR and the outcome of district court litigation. Noting that the “broadest reasonable construction” standard is used in other proceedings, the Court found “the Patent Office’s decision to prefer a degree of inconsistency in the standards used between the courts and the agency, rather than among agency proceedings” to be reasonable. Cuozzo, Slip op. at 20. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion (in which Justice Sotomayor joined) concurring in the decision on the “broadest reasonable construction” standard, but dissenting from the Court’s ruling on appealability of the institution decision, discussed below.
The Supreme Court majority (Justices Roberts, Kennedy, Ginsburg, Thomas, Breyer, and Kagan) also affirmed the Federal Circuit’s finding that a decision on whether to institute IPR is not reviewable. Relying on the express language of 35 U.S.C. § 314(d), which states “[t]he determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable,” the Court found that the “strong presumption in favor of judicial review” was overcome by clear and convincing indications . . . that Congress intended to bar review.” Cuozzo, Slip op. at 9-10. The Court, however, noted that it is not deciding “the precise effect of §314(d) on appeals that implicate constitutional questions . . . .” Id. at 11. The Court made it clear that it is not “categorically preclude[ing] review of a final decision where a petition fails to give ‘sufficient notice’ such that there is a due process problem with the entire proceeding.” Id. The Court also noted that its interpretation does not “enable the agency to act outside its statutory limits by, for example, canceling a patent claim for ‘indefiniteness under §112’ in inter partes review.” Id.
The Cuozzo decision leaves room for constitutional challenges to the IPR proceedings, such as the one presented in Cooper v. Lee, Case No. 15-995 (challenging IPR proceedings as violating the Seventh Amendment right for trial by jury ), cert. pending. Nonetheless, with the Supreme Court’s affirmance of the finality of the IPR institution decision and use of the “broadest reasonable construction” standard, IPR remains a powerful and effective tool for challenging patents.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. John Kappos, an O'Melveny partner licensed to practice law in California, and Bo Moon, an O'Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.


motion for sanctions. We reverse and remand.
of the Local Government Code.
any owner in Hill Forest Manor.
accommodate access to any pending or prospective developments on the Jackson property.
contended that the Jacksons had not sold any part of their property since 1995.
The county argued that Hill Forest Lane was a public road and provided access to other residents.
commissioners voting to deny the application are appellees Betty Shiflett, John Bertling, and Pam Finke.
mandamus with the district court.
infrastructure to the Jackson property and no pending or existing developments on the Jackson property.
cancellation of the 134-foot portion of Hill Forest Lane that encroached upon their property.
sanctions and granting appellees' motion for summary judgment.
their fifth issue, appellants contend that the trial court erred in denying their motion for sanctions.
that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v.
must be taken as true. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).
evidence raising a genuine issue of material fact. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
judgment is proper. See id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
any of the summary judgment grounds are meritorious. Id.
refusal to perform. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991); Sheppard v.
proper case to correct a clear abuse of discretion by a public official." Anderson, 806 S.W.2d at 793.
which would have authorized the public official to take action sought to be enforced upon him. Wortham v.
Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); Rash v. City Council of City of Houston, 557 S.W.
basis for finding an abuse of discretion. Wortham, 133 Tex. at 279, 128 S.W.2d at 1151.
matter of law that section 232.008(e) applied.
by “the owners of 75 percent of the property included in the subdivision, phase or identifiable part." Tex.
discretionary act under subsection (h).
novo standard. See Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002).
In construing statutory provisions, our objective is to determine and give effect to the legislature's intent.
interconnection or (2) interconnection offered for consideration as the interconnecting infrastructure.
or an interconnection offered for consideration as the interconnecting infrastructure.
interconnecting infrastructure between Hill Forest Manor and the Jackson property.
whether cancellation of the last 134 feet of Hill Forest Lane would prevent that proposed interconnection.
of material fact as to whether there is a pending or existing development on the Jackson property.
The evidence submitted for summary judgment does not conclusively prove that subsection (e) applies.
entitled to mandamus relief against appellees. Accordingly, we sustain appellants' fourth issue.
the Texas Rules of Civil Procedure and section 10.001 of the Texas Civil Practice and Remedies Code.
See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code § 10.001.
A trial court's ruling on a motion for sanctions is reviewed under an abuse-of- discretion standard. Cire v.
argument for the extension, modification, or reversal of existing law." Id.
for legal arguments advanced, or (3) a factual allegation or denial lacked evidentiary support. Tex. Civ.
overcoming the presumption of good faith in the filing of pleadings. Low, 221 S.W.3d at 614.
false and misleading statements. However, those beliefs were not supported by sufficient evidence.
appellees knowingly filed pleadings with false or misleading statements or knowingly filed false affidavits.
appellees, which does not warrant sanctions.
Panel consists of Chief Justice Hedges and Justices Yates and Frost. (Frost, J. dissenting).
 See Tex. Loc. Gov't Code § 232.008(e).
over county officials and “general supervisory control over the orders of the commissioners court").
petition's allegations with a verified amended answer specifically contesting the allegations set for in the petition.
Accordingly, we find that appellants are not entitled to mandamus on this basis.
subsection (h) on this ground.
party, we need not address the propriety of the affidavits submitted by appellees. See City of Brownsville v. Alvarado, 897 S.
turned on the complained-of evidence). Accordingly, we overrule issue two.
 Our colleague contends that we should reverse and remand based upon the statutory language of 232.008(b).
under this subsection. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam); Exxon Mobil Corp. v.
Hines, 252 S.W.3d 496, 507 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).


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Pro bono partners that work with Justice in Aging increase our capacity to file and win important cases and bring high quality legal representation and justice to more older adults. The Justice in Aging Impact Litigation program has returned billions of dollars in benefits to poor older adults. As the only national organization focused solely on protecting the rights of low-income seniors, we hear about systemic issues from our partners on the ground and work with our stellar pro bono partners to file lawsuits that change the lives of millions of seniors. We couldn’t achieve this without our valued pro bono colleagues.
Pro Bono Partners Claudia Vetesi and Will Stern from Morrison Foerster with client, Kevin Hart.
Justice in Aging Board Member and Partner at Proskauer Russell L. Hirschhorn accepting a Justice in Aging Impact Award for his role in the case Clark v. Astrue.
Morrison Foerster senior council Will Stern and associates Elizabeth Balassone and Robert Petraglia worked with Justice in Aging on the case Hart V. Berryhill. The outcome of that case was to compel the Social Security Administration to re-decide Kevin Hart’s and thousands of other Californians’ disability determinations after we proved that the the Social Security Administration was wrongly relying on the medical opinions of a disqualified doctor to make disability determinations. The case potentially impacts more than 7,000 individuals that were examined by the doctor in question. Kevin Hart and Will Stern are pictured above with Claudia Vetesi at Justice in Aging’s spring 2018 fundraising gala.
Partner Greg Jones of McDermott Will & Emery is working with Justice in Aging on Kelly v. Kent, a case we filed against the state of California for failing to implement a federal law that is intended to keep people with disabilities out of institutions, while ensuring their spouses can continue to meet their basic needs. The case is ongoing.
Wilson, Sonsini, Goodrich & Rosati (WSGR) partners Steve Guggenheim, and David Berger, Of Counsel and Pro-Bono Council Luke Liss, Of Counsel Cheryl Foung, associates Alexander Brehnan, Taylor Dimler, Lindsey Edwards, Michelle Hale, Jason Mollick, Grace Pak, Dylan Savage, and Eva Yin as well as paralegal Stacy Love have been working with Justice in Aging and lead counsel the Center for Medicare Advocacy on the case, Alexander V. Price (formerly Barrows V. Burwell & Bagnall V. Sebelius) to stop the common hospital practice of classifying hospital patients as being under “observation status” without formerly admitting them. This can lead to large surprise bills for hospital care that would have been covered under Medicare Part A if the patients had been formally admitted. WSGR also partnered with us in the successful Situ et al v. Leavitt case, a national class action lawsuit against the Secretary of the U.S. Department of Health and Human Services that led to improvements in the Medicare Part D program for over 6 million low-income Medicare beneficiaries.
Justice in Aging celebrates Arnold & Porter’s commitment to securing economic stability for older adults. Chairman of the firm, Richard Alexander, is Chair of the Justice in Aging board. We are excited to be working with firm partners Sheila Boston, Sam Lonergan, and Daphne Morduchowitz on economic security advocacy. Arnold & Porter has worked with us for many years and has been extremely helpful in helping to draft and submit amicus briefs.
Cozen O’Connor partners John Sullivan and David Reichenberg and associates are working with Justice in Aging as part of the litigation team on Alexander et al v. Senior and Bragg, a case we filed in December 2018 against the state of Florida for violating the Americans with Disabilities Act (ADA) by prioritizing the funding of long-term care services in institutions rather than home environments. The Supreme Court case of LC v Olmstead requires that older adults and adults with disabilities receive public benefits in their least restrictive setting, a requirement that Florida violates with its lengthy wait lists for home-based care.
Proskauer worked with Justice in Aging on Clark v. Astrue, in which Elaine Clark, a woman with end stage renal disease and other serious medical conditions was denied the benefits she relied on due to an outstanding warrant for violating probation. Although there was never a finding that she did violate probation, Social Security ended her benefits. She died in the hospital while the case was pending. This case resulted in the restoration of benefits to as many as 140,000 older Americans, totaling some $1 billion. Partner and Justice in Aging board member Russell Hirschhorn, is pictured above receiving an award for his role in the case.
Munger, Tolles & Olson worked with Justice in Aging on Martinez V. Astrue, a case in which an innocent woman, Rosa Martinez, lost the disability benefits she relied on because the Social Security Administration mistook her identity for someone who was a felon. The case became a class action on behalf of 200,000 people who had been denied or had their benefits discontinued simply because there was an outstanding arrest warrant for a felony, regardless of whether they knew of the charges, or how far in the past the warrant was. Justice in Aging board member, David Fry, was lead on the case. David and Bob Johnson, of counsel and former partner at the firm, and also a Justice in Aging board member, received an Impact Award on behalf of the firm in 2015 for this case. Munger, Tolles & Olson has also helped Justice in Aging with amicus briefs.

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Archives de pédiatrie – Vol. 15 – N° 3 – p. – Surveillance et épidémiologie de la bronchiolite du nourrisson en France – EM|consulte. 1 sept. Note de problématique bronchiolite (GHM Bronchiolites 04M18). .. charge de la bronchiolite aiguë du nourrisson par les médecins libéraux. Request PDF on ResearchGate | Forme commune de la bronchiolite du nourrisson * | Bronchiolitis may be defined as a viral infection in infants before 2 years.
Peaks are more important each year and involve younger patients. The epidemiology of RSV bronchiolitis remains difficult to characterize because of the lack of consensus for its definition.
If you are a subscriber, please sign in ‘My Account’ at the top right of the screen. This phenomenon does not concern other winter epidemics such as rotavirus gastroenteritis or influenza in infants.
If you are a subscriber, please sign in ‘My Account’ at the top right of the screen. Respiratory symptoms remain generally mild, and treatment just supportive and at home. You may thus request that your data, should it be inaccurate, incomplete, unclear, outdated, not be used or stored, be corrected, clarified, updated or nourridson.
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Justia › US Law › US Case Law › US Supreme Court › Volume 339 › Graver Tank & Mfg. Co. v. Linde Air Products Co.
Graver Tank & Mfg. Co. v. Linde Air Products Co.
1. This Court affirms the finding of the two courts below that, under the doctrine of equivalents, certain flux claims of Jones patent No. 2,043,960, for an electric welding process and for fluxes, or compositions, to be used therewith were infringed. Pp. 339 U. S. 606-612.
2. The essence of the doctrine of equivalents is that one may not practice a fraud on a patent. P. 339 U. S. 608.
3. The doctrine of equivalents is founded on the theory that, if two devices do the same work in substantially the same way and accomplish substantially the same result, they are the same, even though they differ in name, form or shape. Pp. 339 U. S. 608-609.
4. In determining equivalents, consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with other ingredients, the functions which it is intended to perform, and whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was. P. 339 U. S. 609.
5. A finding of equivalence is a determination of fact to be made by the trial court, and the trial court's decision should not be disturbed unless clearly erroneous. Pp. 339 U. S. 609-610.
silicate) for magnesium silicate (which is an alkaline earth metal silicate), where the two compositions were substantially identical in operation and result, was so insubstantial, in view of the technology and the prior art, that the patent was infringed under the doctrine of equivalents. Pp. 339 U. S. 610-612.
The history of the case is summarized in the first paragraph of the opinion. On the aspect of the case involved in the rehearing, the prior decision of this Court is adhered to, p. 339 U. S. 612.
Linde Air Products Co., owner of the Jones patent for an electric welding process and for fluxes to be used therewith, brought an action for infringement against Lincoln and the two Graver companies. The trial court held four flux claims valid and infringed and certain other flux claims and all process claims invalid. 86 F.Supp. 191. The Court of Appeals affirmed findings of validity and infringement as to the four flux claims, but reversed the trial court and held valid the process claims and the remaining contested flux claims. 167 F.2d 531. We granted certiorari, 335 U.S. 810, and reversed the judgment of the Court of Appeals insofar as it reversed that of the trial court, and reinstated the District Court decree. 336 U. S. 271. Rehearing was granted, limited to the question of infringement of the four valid flux claims and to the applicability of the doctrine of equivalents to findings of fact in this case.
At the outset it should be noted that the single issue before us is whether the trial court's holding that the four flux claims have been infringed will be sustained. Any issue as to the validity of these claims was unanimously determined by the previous decision in this Court, and attack on their validity cannot be renewed now by reason of limitation on grant of rehearing. The disclosure, the claims, and the prior art have been adequately described in our former opinion and in the opinions of the courts below.
In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out, and that is the end of it.
But courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for -- indeed, encourage -- the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism, and would be subordinating substance to form. It would deprive him of the benefit of his invention, and would foster concealment, rather than disclosure, of inventions, which is one of the primary purposes of the patent system.
"if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape."
literal words of the claim, the doctrine of equivalents may be used to restrict the claim and defeat the patentee's action for infringement. Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 170 U. S. 568. In its early development, the doctrine was usually applied in cases involving devices where there was equivalence in mechanical components. Subsequently, however, the same principles were also applied to compositions, where there was equivalence between chemical ingredients. Today the doctrine is applied to mechanical or chemical equivalents in compositions or devices. See discussions and cases collected in 3 Walker on Patents (Deller's ed.1937) §§ 489-492; Ellis, Patent Claims (1949) §§ 59-60.
What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula, and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other, and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was.
persuasiveness, and weight of evidence. It is to be decided by the trial court, and that court's decision, under general principles of appellate review, should not be disturbed unless clearly erroneous. Particularly is this so in a field where so much depends upon familiarity with specific scientific problems and principles not usually contained in the general storehouse of knowledge and experience.
In the case before us, we have two electric welding compositions or fluxes: the patented composition, Unionmelt Grade 20, and the accused composition, Lincolnweld 660. The patent under which Unionmelt is made claims essentially a combination of alkaline earth metal silicate and calcium fluoride; Unionmelt actually contains, however, silicates of calcium and magnesium, two alkaline earth metal silicates. Lincolnweld's composition is similar to Unionmelt's, except that it substitutes silicates of calcium and manganese -- the latter not an alkaline earth metal -- for silicates of calcium and magnesium. In all other respects, the two compositions are alike. The mechanical methods in which these compositions are employed are similar. They are identical in operation, and produce the same kind and quality of weld.
The question which thus emerges is whether the substitution of the manganese, which is not an alkaline earth metal, for the magnesium, which is, under the circumstances of this case, and in view of the technology and the prior art, is a change of such substance as to make the doctrine of equivalents inapplicable; or, conversely, whether, under the circumstances, the change was so insubstantial that the trial court's invocation of the doctrine of equivalents was justified.
metals are often found in manganese ores in their natural state, and that they serve the same purpose in the fluxes (R. 831-832), and a chemist testified that, "in the sense of the patent," manganese could be included as an alkaline earth metal (R. 297). Much of this testimony was corroborated by reference to recognized texts on inorganic chemistry (R. 332). Particularly important, in addition, were the disclosures of the prior art, also contained in the record. The Miller patent, No. 1,754,566, which preceded the patent in suit, taught the use of manganese silicate in welding fluxes (R. 969, 971). Manganese was similarly disclosed in the Armor patent, No. 1,467,825, which also described a welding composition (R. 1346). And the record contains no evidence of any kind to show that Lincolnweld was developed as the result of independent research or experiments.
"To no type of case is this . . . more appropriately applicable than to the one before us, where the evidence is largely the testimony of experts as to which a trial court may be enlightened by scientific demonstrations. This trial occupied some three weeks, during which, as the record shows, the trial judge visited laboratories with counsel and experts to observe actual demonstrations of welding as taught by the patent and of the welding accused of infringing it, and of various stages of the prior art. He viewed motion pictures of various welding operations and tests, and heard many experts and other witnesses."
336 U. S. 336 U.S. 271, 336 U. S. 274-275.
can be efficiently and effectively substituted for calcium and magnesium silicates as the major constituent of the welding composition."
It is difficult to conceive of a case more appropriate for application of the doctrine of equivalents. The disclosures of the prior art made clear that manganese silicate was a useful ingredient in welding compositions. Specialists familiar with the problems of welding compositions understood that manganese was equivalent to, and could be substituted for, magnesium in the composition of the patented flux ,and their observations were confirmed by the literature of chemistry. Without some explanation or indication that Lincolnweld was developed by independent research, the trial court could properly infer that the accused flux is the result of imitation, rather than experimentation or invention. Though infringement was not literal, the changes which avoid literal infringement are colorable only. We conclude that the trial court's judgment of infringement respecting the four flux claims was proper, and we adhere to our prior decision on this aspect of the case.
L. Hand in Royal Typewriter Co. v. Remington Rand, 168 F.2d 691, 692.
this case, where petitioners are not charged with any such malevolence, these lofty principles do not justify the Court's sterilization of Acts of Congress and prior decisions, none of which is even mentioned in today's opinion.
"no determination need be made whether it is a known chemical fact outside the teachings of the patent that manganese is an equivalent. . . ."
Since today's affirmance unquestioningly follows the findings of the trial court, this Court necessarily relies on what the specifications revealed. [Footnote 2/1] In so doing, it violates a direct mandate of Congress without even discussing that mandate.
"shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery."
"like a nose of wax, which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express. . . . The claim is a statutory requirement, prescribed for the very purpose of making the patentee define precisely what his invention is, and it is unjust to the public, as well as an evasion of the law, to construe it in a manner different from the plain import of its terms."
Giving this patentee the benefit of a grant that it did not precisely claim is no less "unjust to the public" and no less an evasion of R.S. § 4888 merely because done in the name of the "doctrine of equivalents."
the Court has heretofore recognized as wise safeguards. See Milcor Steel Co. v. Fuller Co., 316 U. S. 143, 316 U. S. 148. One need not be a prophet to suggest that today's rhapsody on the virtue of the "doctrine of equivalents" will, in direct contravention of the Miller case, supra, make enlargement of patent claims the "rule," rather than the "exception."
Whatever the merits of the "doctrine of equivalents" where differences between the claims of a patent and the allegedly infringing product are de minimis, colorable only, and without substance, that doctrine should have no application to the facts of this case. For the differences between respondent's welding substance and petitioner's claimed flux were not nearly so slight. The claims relied upon here did not involve any mechanical structure or process where invention lay in the construction or method, rather than in the materials used. Rather, they were based wholly on using particular materials for a particular purpose. Respondent's assignors experimented with several metallic silicates, including that of manganese. According to the specifications (if these are to be considered), they concluded that, while several were "more or less efficacious in our process, we prefer to use silicates of the alkaline earth metals." Several of their claims which this Court found too broad to be valid encompassed manganese silicate; the only claims found valid did not. Yet today the Court disregards that crucial deficiency, holding those claims infringed by a composition of which 88.49% by weight is manganese silicate.
from the valid claims stemmed from fear that its inclusion by name might result in denial or subsequent invalidation of respondent's patent.
Under these circumstances, I think petitioner had a right to act on the belief that this Court would follow the plain mandates of Congress that a patent's precise claims mark its monopoly boundaries, and that expansion of those claims to include manganese could be obtained only in a statutory reissue proceeding. The Court's ruling today sets the stage for more patent "fraud" and "piracy" against business than could be expected from faithful observance of the congressionally enacted plan to protect business against judicial expansion of precise patent claims. Hereafter, a manufacturer cannot rely on what the language of a patent claims. He must be able, at the peril of heavy infringement damages, to forecast how far a court relatively unversed in a particular technological field will expand the claim's language after considering the testimony of technical experts in that field. To burden business enterprise on the assumption that men possess such a prescience bodes ill for the kind of competitive economy that is our professed goal.
"In the case under consideration, the patentee might have included in the application for the original patent claims broad enough to embrace petitioner's accused machine, but did not.
This 'gave the public to understand' that whatever was not claimed 'did not come within his patent and might rightfully be made by anyone.'"
310 U.S. at 310 U. S. 293.
The Court's contrary approach today causes it to retreat from this sound principle. The damages retroactively assessed against petitioner for what was authorized until today are but the initial installment on the cost of that retreat.
For this reason, the tidbits of evidence painstakingly selected from the record by this Court have no significance, since the trial court avowedly did not look beyond the specifications themselves.
This Court's approval of the trial judge's resort to specifications is ironic as well as unfortunate. In its original opinion, this Court rejected respondent's contention that the very language invoked here to support infringement should be applied to validate a claim otherwise too board to be upheld. 336 U. S. 271, 336 U. S. 277.
"This provision was inserted in the law for the purpose of relieving the courts from the duty of ascertaining the exact invention of the patentee by inference and conjecture, derived from a laborious examination of previous inventions, and a comparison thereof with that claimed by him. This duty is now cast upon the Patent Office. There, his claim is, or is supposed to be, examined, scrutinized, limited, and made to conform to what he is entitled to. If the office refuses to allow him all that he asks, he has an appeal. But the courts have no right to enlarge a patent beyond the scope of its claim as allowed by the Patent Office, or the appellate tribunal to which contested applications are referred. When the terms of a claim in a patent are clear and distinct (as they always should be), the patentee, in a suit brought upon the patent, is bound by it. Merrill v. Yeomans, 94 U. S. 568."
Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274, 95 U. S. 278.
The Court applies the doctrine of equivalents in a way which subverts the constitutional and statutory scheme for the grant and use of patents.
The claims of the patent are limited to a flux "containing a major proportion of alkaline earth metal silicate." Manganese silicate, the flux which is held to infringe, is not an alkaline earth metal silicate. It was disclosed in the application and then excluded from the claims. It therefore became public property. See Mahn v. Harwood, 112 U. S. 354, 112 U. S. 361. It was, to be sure, mentioned in the specifications. But the measure of the grant is to be found in the claims, not in the specifications. Milcor Steel Co. v. Fuller Co., 316 U. S. 143, 316 U. S. 145-146. The specifications can be used to limit, but never to expand, the claim. See McClain v. Ortmayer, 141 U. S. 419, 141 U. S. 424.
The Court now allows the doctrine of equivalents to erase those time-honored rules. Moreover, a doctrine which is said to protect against practicing "a fraud on a patent" is used to extend a patent to a composition which could not be patented. For manganese silicate had been covered by prior patents, now expired. Thus, we end with a strange anomaly: a monopoly is obtained on an unpatented and unpatentable article.


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Messrs. Miguel Estudillo and Theodore Martin for plaintiffs in error.
Ten persons described as Indians were, in July, 1912, indicted for the murder of William H. Stanley, a white person, 'at, upon, and within the limits of a United States Indian Reservation known as the Cahuilla Indian Reservation in the county of Riverside, within the southern division of the southern district of California, and within the jurisdiction' of the court below, in violation of 273, 275, and 328 of the Penal Code of 1909. [35 Stat. at L. 1143, 1151, chap. 321, U. S. Comp. Stat. Supp. 1911, pp. 1671, 1972, 1685.] As the result of a trial, four of the accused were acquitted, and the six who are plaintiffs in error here were convicted of murder in the second degree, and sentenced to ten years' imprisonment each, and prosecute this direct writ of error to reverse such conviction and sentence. There are one hundred assignments of error, but before we come to consider them we must dispose of a motion made by the government to dismiss on the ground that we are without jurisdiction because the case is susceptible only of review by the circuit court of appeals of the ninth circuit.
The settled significance of these provisions we have just pointed out in the case of Itow v. United States, just decided [ 233 U.S. 581 , 58 L. ed. --, 34 Sup. Ct. Rep. 699], and under the principle there applied it follows that we must determine the right to direct review by ascertaining whether any of the issues enumerated in the provisions of 238 were below involved in the cause. Coming to apply this test, only three out of the matters assigned as error have any conceivable relation to the conditions defined by the statute as essential to give the right to a direct review. They are: (1) a challenge of the jurisdiction of the court below; (2) a contention as to the effect of the treaty of Guadalupe Hidalgo [9 Stat. at L. 922]; (3) an assertion that a constitutional question was involved in the action of the trial court in admitting over objection, testimony as to a statement or admission of Ambrosio Apapas, one of the accused.
As to the first, while it was raised below, it is obviously inadequate to sustain the right to direct review, since, under the writ of error, the whole case is brought here, and not the question of jurisdiction alone, as provided in 238, and because there in no certificate as to the jurisdiction, as required by the section. Maynard v. Hecht, 151 U.S. 324 , 38 L. ed. 179, 14 Sup. Ct. Rep. 353; Chappell v. United States, 160 U.S. 499, 507 , 40 S. L. ed. 510, 512, 16 Sup. Ct. Rep. 397; Courtney v. Pradt, 196 U.S. 89, 91 , 92 S., 49 L. ed. 398, 399, 25 Sup. Ct. Rep. 208.
While the second contention based upon the treaty of Guadalupe Hidalgo was raised in the lower court, it in no sense involved the validity or construction of the treaty, and therefore affords no support for the right to directly review. In substance the proposition concerning the treaty is this: that as the ancestors of the accused prior to the termination of the war with Mexico were citixens of Mexico, and became by the were citizens of Mexico, and became by the the state of California, they were therefore [233 U.S. 587, 590] not amenable to prosecution in the courts of the United States for the crime of murder committed within the state of California, however much they may have been susceptible of being prosecuted for such crime in an appropriate state court. But assuming, for argument's sake, the premise based on the treaty to be sound, and disregarding, for brevity's sake, the fact that the accused were tribal Indians, leading a tribal life, and living on a tribal reservation under the control of the United States, the deduction based on the premise is so absolutely devoid of merit as not in any real sense to involve the construction of the treaty. We so say because the prosecution was for murder committed by Indians on a United States Indian reservation, and therefore was for a crime against the authority of the United States, expressly punishable by statute ( 328, Penal Code), and within the cognizance of the courts of the United States, without reference to the citizenship of the accused, as settled by a long line of anthority. United States v. Kagama, 118 U.S. 375 , 30 L. ed. 228, 6 Sup. Ct. Rep. 1109; United States v. Celestine, 215 U.S. 278 , 54 L. ed. 195, 30 Sup. Ct. Rep. 93; Donnelly v. United States, 228 U.S. 270 , 57 L. ed. 831, 33 Sup. Ct. Rep. 449, Ann. Cas. 1913E, 710; United States v. Sandoval, 231 U.S. 39 , 58 L. ed. --, 34 Sup. Ct. Rep. 1. Indeed, in answering the argument of the government on the motion to dismiss, if not in express terms, at least virtually, it is conceded that the two propositions we have disposed of thus are inadequate to sustain the resort to a direct writ of error. But it is urged that the third contention plainly is sufficient for that purpose, that contention, as we have said, being based upon an exception taken to the action of the trial court in receiving testimony concerning an alleged statement or admission made by one of the accused, Apapas. But we search the record in vain to find the slightest reference made to the Constitution of the United States at the time the objection referred to was taken, or anything whatever to indicate in any manner that the attention of the court below was directed to the fact that there [233 U.S. 587, 591] was any controversy or dispute involving the Constitution of the United States.

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Homeowners who are contemplating or actively engaged in litigation regarding a residential mortgage loan are increasingly taking advantage of a provision of the Real Estate Settlement Procedures Act (“RESPA”) whereby a borrower may request information relating to the servicing of a loan. Such a request for information is termed a Qualified Written Request, or “QWR,” and may impose on loan servicers a duty to respond to borrowers’ inquiries. Financial institutions and others involved in the servicing of residential mortgage loans need to be aware of the duties that can be triggered by receipt of a QWR, particularly in light of recent changes to the statutory response times applicable to QWRs.
What is a QWR and to Whom Does It Apply?
a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer that (i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.
The Consumer Financial Protection Bureau (“CFPB”) has noted, in its Official Interpretations of this provision, that a QWR “is not required to include both types of requests. For example, a qualified written request may request information relating to the servicing of a mortgage loan but not assert that an error relating to the servicing of a loan has occurred.” See 12 C.F.R. Part 1024, Supp. I, § 1024.31.
Courts have held that “RESPA does not require any magic language before a servicer must construe a written communication from a borrower as a qualified written request and respond accordingly.” Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 687 (7th Cir. 2011). Thus, “[a]ny reasonably stated written request for account information can be a qualified written request.” Id. At the same time, “the statutory duty to respond does not arise with respect to all inquiries or complaints from borrowers to servicers.” Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 666 (9th Cir. 2012), cert. den. 133 S.Ct. 2800 (2013). In particular, a QWR must relate to servicing and, thus, a borrower’s request for loan origination information or documents does not qualify as a QWR. See id. at 666-67.
In addition, the duty to respond to a QWR applies only to a “servicer of a federally related mortgage loan.” See 12 U.S.C. § 2605(e)(1)(A). For purposes of RESPA, a servicer is defined as the person responsible for “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan . . . and making the payments of principal and interest . . .” 12 U.S.C. § 2605(i)(2)-(3). A “federally related mortgage loan” is generally defined, subject to certain exceptions, as a non-temporary loan, secured by a lien on residential real property, where the lender is regulated by the federal government or the lender’s deposit accounts are insured by a federal agency. See 12 C.F.R. 1024.2(b).
What Actions Are Required upon Receipt of a QWR?
Upon receipt of a QWR, a mortgage servicer is required to take certain steps, each of which is subject to certain deadlines.
First, the servicer must “provide a written response acknowledging receipt of the correspondence within 5 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period.” See 12 U.S.C. § 2605(e)(1)(A).
Second, within 30 days of receipt of the QWR (with a possible 15-day extension), the servicer must provide a substantive response, the nature of which depends on the type of QWR. Upon receipt of a “notice of error” (i.e., a QWR in which the borrower “asserts an error relating to the servicing of a mortgage loan,” see 12 CFR 1024.35), the servicer must: (1) “make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction”; or (2) “after conducting an investigation, provide the borrower with a written explanation or clarification” that includes (i) a statement of the reasons the servicer believes the account is correct and (ii) the contact information of a servicer employee or office that can provide assistance to the borrower. See 12 U.S.C. § 2605(e)(2).
Where the servicer receives a “request for information” QWR (see 12 CFR 1024.36), the servicer must provide: (1) the “information requested by the borrower or an explanation of why the information requested is unavailable;” and (2) the contact information of a servicer employee or office that can provide assistance to the borrower. See 12 U.S.C. § 2605(e)(2)(C). While the 30-day deadline for responding to a QWR applies to most borrower inquires, it is important to bear in mind that certain types of “notices of error” and “requests for information” (such as a request for the identity of the owner of the loan under 12 U.S.C. § 2605(k)(1)) may trigger separate deadlines and/or substantive obligations. See 12 U.S.C. § 2605(k)(1); 12 CFR 1024.36(d)(2); 12 CFR 1024.35(e)(3).
Third, during the 60-day period beginning on the date of receipt of a QWR, “a servicer may not provide information regarding any overdue payment, owed by such borrower and relating to such period or qualified written request, to any consumer reporting agency.” See 12 U.S.C. § 2605(e)(3).
Section 1463 of the Dodd-Frank Financial Reform Act (the “Dodd-Frank Act”), which took effect in January 2014, contains several important modifications to the QWR provisions of RESPA. First, a servicer must now acknowledge receipt of a QWR within 5 business days (previously 20 days) and must provide a substantive response to the borrower within business 30 days (previously 60 days), with a possible 15-day extension if the servicer sends the borrower notice of the extension and its reason for the delay in responding. See 12 U.S.C. § 2605(e)(1)(A); 12 U.S.C. § 2605(e)(2); 12 U.S.C. § 2605(e)(4).
Second, the Dodd-Frank Act added Section (k)(1) to RESPA, which provides in part that a servicer shall not “fail to respond within 10 business days to a request from a borrower to provide the identity, address, and other relevant contact information about the owner or assignee of the loan.” 12 U.S.C. § 2605(k)(1). While this section contains similar requirements to Section 1641(f)(2) of the Truth in Lending Act (“TILA”), Section 1641(f)(2) does not contain a specific deadline. See 12 U.S.C. § 1641(f)(2). Although such inquiries are not technically QWRs, borrowers submitting QWRs frequently include requests for the identity of the owner or assignee of their loans, which are often styled as requests under TILA 1641(f)(2). As such, loan servicers need to be aware of the short 10 business day deadline to respond to such inquiries.
Finally, the Dodd-Frank Act increased the statutory damages available to a borrower for a violation of the RESPA QWR provisions. For individual borrowers, available statutory damages increased from $1,000 to $2,000, while in the case of a class action lawsuit, the maximum allowable amount of statutory damages doubled from $500,000 to $1 million. See 12 U.S.C. § 2605(f). In addition to statutory damages, borrowers may also seek to recover actual damages they allegedly have suffered as a result of a servicer’s failure to provide an adequate and timely response to a QWR. However, servicers potentially can mitigate liability pursuant to RESPA’s safe harbor provision, which provides that a “transferor or transferee servicer shall not be liable” for any violation of RESPA’s QWR provisions if, within 60 days of discovering an error and before the commencement of a QWR-based action and receipt of notice of error from the borrower, the servicer notifies the borrower of the error and makes appropriate adjustments. See 12 USC 2605(f)(4).
The above changes to RESPA, as well as the increasing use of QWRs by borrowers, make it important for mortgage servicers to understand their obligations in responding to QWRs and to establish procedures for acknowledging and responding to QWRs. The following recommended practices are designed to assist mortgage servicers in dealing with QWRs so as to minimize the risk of borrower litigation.
First, it is recommended that servicers establish an address to which QWRs must be sent, as permitted by RESPA’s implementing regulation, Regulation X. That address must be communicated to the borrower, included in any communication in which the servicer provides the borrower with contact information for assistance from the servicer, and included on any website maintained by the servicer if the website lists any contact address for the servicer. 12 CFR 1024.35(c). Where a servicer has established such a QWR contact address, borrower requests sent to other addresses are not proper QWRs. See Roth v. CitiMortgage Inc., 2014 WL 2853549 (2nd Cir. June 24, 2014) (dismissing borrower’s RESPA claim where purported QWRs were not sent to servicer’s designated QWR address). In addition to designating a QWR address, mortgage services are advised to establish a method of determining the date of receipt of a QWR (which triggers the applicable response deadlines) and a mechanism for alerting the appropriate department of receipt of a QWR.
Second, mortgage servicers should set up a procedure to stop reporting the borrower to consumer credit agencies upon receipt of a QWR in order to minimize the risk of being deemed in violation of 12 U.S.C. § 2605(e)(3), as discussed above.
Third, mortgage services are advised to establish a system for identifying the deadlines to respond to a QWR and tracking the progress of preparing and submitting such responses. This is particularly important in light of the recent tightening of the timeframe for QWR responses, whereby a servicer has only 5 days to acknowledge receipt of a QWR and 30 days or less to provide a substantive response or seek an extension.
Finally, mortgage servicers should establish procedures for reviewing QWRs, investigating any allegations of account error, and compiling any documents requested by the QWR. If the account at issue is in error, servicers will need to correct such errors and advise the borrower of any corrections that were made. If the account is determined to be without error, servicers will need to communicate this to the QWR sender, and send any documents requested by the QWR and within the scope of a QWR. Although borrower requests for the identity of the owner or assignee of their loans are proper under TILA 1641(f)(2), most courts have found that information regarding loan origination is not properly within the scope of a QWR and servicers do not have a duty to provide such information to borrowers. See, e.g., O’Connor v. Nantucket Bank, 992 F.Supp.2d 24, 36-37 (D. Mass. 2014); Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 666-67 (9th Cir. 2012); Ward v. Security Atlantic Mortg. Elec. Reg. Sys., Inc., 858 F.Supp.2d 561 (E.D.N.C. 2012); MorEquity, Inc. v. Naeem, 118 F.Supp.2d 885 (N.D.Ill. 2000).
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Party Name: Lakhdar BOUMEDIENE, et al., Petitioners, v. George W. BUSH, President of The United States, et al. v. Khaled A.F. Al Odah, next friend of Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States et al.
In the Authorization for Use of Military Force (AUMF), Congress empowered the President "to use all necessary and appropriate force against those ... he determines planned, authorized, committed, or aided the terrorist attacks ... on September 11, 2001." In Hamdi v. Rumsfeld, 542 U.S. 507, 518, 588-589, 124 S.Ct. 2633, 159 L.Ed.2d 578, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U.S. Naval Station at Guantanamo Bay, Cuba, were "enemy combatants."
Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U.S. territory. The D. C. Circuit affirmed, but this Court reversed, holding [128 S.Ct. 2234] that 28 U.S.C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U.S. 466, 473, 124 S.Ct. 2686, 159 L.Ed.2d 548. Petitioners' cases were then consolidated into two proceedings. In the first, the District Judge granted the Government's motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.
cases (like petitioners') pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241 (e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to "any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments "shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date . . . which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained . . . since September 11, 2001."
The D. C. Circuit concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U.S. Const., Art. I, §9, cl. 2, which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.
1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)'s effective date provision undoubtedly applies to habeas actions, which, by definition, "relate to . . . detention" within that section's meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to "any other action" under §2241(e)(2), because it largely repeats that section's language. The phrase "other action" in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the "writ of habeas corpus." Because the two paragraphs' structure implies that habeas is a type of action "relating to any aspect of . . . detention," etc., pending habeas actions are in the category of cases subject to the statute's jurisdictional bar. This is confirmed by the MCA's legislative history. Thus, if MCA §7 is valid, petitioners' cases must be dismissed. Pp. 736-739.
2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated as enemy [128 S.Ct. 2235] combatants or because of their presence at Guantanamo. Pp. 739-771.
(a) A brief account of the writ's history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution's essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance." Hamdi, supra, at 536, 124 S.Ct. 2633. Separation-of-powers principles, and the history that influenced their design, inform the Clause's reach and purpose. Pp. 739-746.
(b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department's in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ's geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive. The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties' arguments that the very lack of a precedent on point supports their respective positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court. Pp. 746-752.
(c) The Suspension Clause has full effect at Guantanamo. The Government's argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 753-771.
(i) The Court does not question the Government's position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government's premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas' history provides scant support for this proposition, and it is inconsistent with the Court's precedents and contrary to fundamental separation-of-powers principles. Pp. 753-755.
760 F.2d 1366 (2nd Cir. 1985), 479, United States v. Southland Corp.