United States: Patent Law And The Supreme Court: Patent Certiorari Petitions Pending (October 2016)

WilmerHale compiles lists of certiorari petitions that raise patent-law issues. This page contains a consolidated list of all recently pending petitions, organized in reverse chronological order by date of certiorari petition.

Recently pending, granted and denied certiorari petitions

LifeScan Scotland, Ltd. v. Pharmatech Solutions, Inc., No. 16-377

Question Presented:

The Leahy-Smith America Invents Act, following established principles of administrative law, sets up a scheme in its newly established inter partes patent challenge proceedings that requires separate decisions to be made for institution and adjudication by two different decision makers: The Act provides that "[t]he Director" of the U.S. Patent and Trademark Office "shall determine whether to institute an inter partes review under this chapter," 35 U.S.C. § 314(b), and that "[t]he Patent Trial and Appeal Board shall . . . conduct each inter partes review instituted under this chapter," id. § 316(c).

The Director subsequently promulgated a regulation providing that "[t]he Board institutes the trial on behalf of the Director." 37 C.F.R. § 42.4(a). As a result, the separate statutory functions in sections 314 and 316(c) are now combined before a single panel of the Board, which first decides whether to institute inter partes review and then rules on the merits.

The question presented is:

Whether the Leahy-Smith America Invents Act permits the Patent Trial and Appeal Board instead of the Director to make inter partes review institution decisions.

Cert. petition filed 9/20/16.

CAFC Opinion, CAFC Argument

Ethicon Endo-Surgery, Inc. v. Covidien LP, No. 16-366

Question Presented:

The Leahy-Smith America Invents Act, following established principles of administrative law, sets up a scheme in its newly established inter partes patent challenge proceedings that requires separate decisions to be made for institution and adjudication by two different decision makers: The Act provides that "[t]he Director" of the U.S. Patent and Trademark Office "shall determine whether to institute an inter partes review under this chapter," 35 U.S.C. § 314(b), and that "[t]he Patent Trial and Appeal Board shall *** conduct each inter partes review instituted under this chapter," id. § 316(c).

The Director subsequently promulgated a regulation providing that "[t]he Board institutes the trial on behalf of the Director." 37 C.F.R. § 42.4(a). As a result, the separate statutory functions in sections 314 and 316(c) are now combined before a single panel of the Board, which first decides whether to institute inter partes review and then rules on the merits.

The question presented is:

Whether the Leahy-Smith America Invents Act permits the Patent Trial and Appeal Board instead of the Director to make inter partes review institution decisions.

Cert. petition filed 9/20/16.

CAFC Opinion, CAFC Argument

Mylan Pharmaceuticals Inc. v. Acorda Therapeutics Inc., No. 16-360

Question Presented:

Under the Hatch-Waxman Act, before a generic pharmaceutical manufacturer can market a generic version of a brand-name drug, it must file an abbreviated new drug application (ANDA) with the Food and Drug Administration in Maryland. That filing generally constitutes an act of patent infringement, giving the brand-name manufacturer an immediate right to sue the generic manufacturer for patent infringement. Mylan prepared the ANDAs here in West Virginia and filed them in Maryland. Mylan was then sued for patent infringement in Delaware, despite the absence of any affirmative steps towards marketing the generic drugs there or any other suit-related contacts between Mylan and Delaware. Such Delaware ANDA-prompted suits were common, under a general jurisdiction theory, before this Court's decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014). In the decision below, however, the Federal Circuit authorized such suits to be filed in Delaware (or virtually anywhere else) on a theory of specific personal jurisdiction because the ANDA "reliably indicate[s] plans to engage in marketing of the proposed generic drugs," including in Delaware. Thus, the decision below resurrects the pre-Daimler regime under a rubric of nationwide specific personal jurisdiction.

The question presented is:

Whether the mere filing of an abbreviated new drug application by a generic pharmaceutical manufacturer is sufficient to subject the manufacturer to specific personal jurisdiction in any state where it might someday market the drug.

Cert. petition filed 9/19/16.

CAFC Opinion, CAFC Argument

TC Heartland, LLC v. Kraft Foods Group Brands LLC, No. 16-341

Question Presented:

The patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions "may be brought in the judicial district where the defendant resides . . . ." The statute governing "[v]enue generally," 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts.

In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), this Court held that § 1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase "where the defendant resides" in § 1400(b) "mean[s] the state of incorporation only." Id. at 226. The Court's opinion concluded: "We hold that 28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391 (c)." Id. at 229.

Federal Circuit precedent holds to the contrary. Although Congress has not amended § 1400(b) since Fourco, the Federal Circuit has justified its departure from Fourco's interpretation of § 1400(b) based on amendments to § 1391(c). As stated in the decision below, Federal Circuit precedent holds that "the definition of corporate residence in the general venue statute, § 1391(c), applie[s] to the patent venue statute, 28 U.S.C. § 1400" (App. 4a) and that "Fourco was not and is not the prevailing law" (App. 8a) on where venue is proper in patent infringement actions under § 1400(b).

The question in this case is thus precisely the same as the issue decided in Fourco:

Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).

Cert. petition filed 9/12/16.

CAFC Opinion, No CAFC Argument

Encyclopaedia Britannica, Inc. v. Dickstein Shapiro, LLP, No. 16-305

Questions Presented:

In the 1980s, Petitioner Encyclopaedia Britannica ("Britannica") developed a pioneering multimedia search system that, for the first time, was able to search through vast amounts of multimedia information and display this information in a user-friendly manner. When Britannica sought to enforce patents obtained on this system, it was discovered that certain patent application filing errors committed by Respondent Dickstein Shapiro, LLP ("Dickstein") rendered these patents invalid. Almost a decade later, Britannica's malpractice case against Dickstein was dismissed on the pleadings in light of this Court's precedent in Alice Corp. Party Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014), despite the presence of a pending motion to conduct discovery and factual disputes regarding whether the patents at issue presented an "abstract idea" or lacked "an inventive concept."

  1. Did the District of Columbia Circuit err in holding, in contrast to the Seventh Circuit, that the "case-within-a-case" portion of a malpractice action is governed by jurisprudence arising after the malpractice injury rather than at the time of the injury?
  2. Can a patent be invalidated under 35 U.S.C. § 101 and Alice on the pleadings, in the presence of factual disputes and a lack of evidentiary support that the patented invention is an "abstract idea" or that it lacks "an inventive concept?"

Cert. petition filed 9/8/16, waiver of respondent Dickstein Shapiro, LLP filed 9/12/16, conference 10/7/16.

No CAFC Opinion, CAFC Argument

Grünenthal GmbH v. Teva Pharmaceuticals USA, Inc., 16-296 (vide 16-289)

Questions Presented:

The U.S. patent statute provides two separate bases for denying patentability over prior art, (1) lack of novelty (or anticipation) under 35 U.S.C. § 102, where the claimed invention is identically described in the prior art, and (2) obviousness under 35 U.S.C. § 103, where the claimed invention, though not identically described in the prior art, would nonetheless have been obvious to a person of ordinary skill in the art. A critical distinction between these separate requirements is that objective evidence of patentability, such as trial and failure of others, skepticism, unexpected results, industry acclaim, and commercial success, must be considered in evaluating obviousness under § 103 but may be ignored in assessing lack of novelty under § 102. Thus, substantive rights hinge on properly applying § 103 in situations where the stringent identity test of § 102 is not met.

Given the importance of this distinction, courts have permitted resort to unappreciated "inherency" to fill voids in allegedly anticipating prior art disclosures only where the evidence unambiguously demonstrated that the missing feature was necessarily present in an otherwise anticipatory previously-disclosed embodiment.

Thus, the questions presented here are:

  1. Whether the Federal Circuit violated the statutory line between lack of novelty and obviousness in this case by finding invalidity under § 102 where the prior art did not describe at least two of the claimed elements of the invention, thereby improperly refusing to consider significant objective evidence of inventiveness; and
  2. Whether evidence from testing an alleged prior art embodiment that cannot anticipate can support a finding of "inherent anticipation" of an embodiment not described or tested?

Cert. petition filed 9/1/16.

CAFC Opinion, No CAFC Argument

Purdue Pharma L.P. v. Epic Pharma, LLC, No. 16-289 (vide 16-296)

Question Presented:

The Patent Act states that, in determining whether a claimed invention, though novel, is impermissibly obvious, the touchstone is whether the "differences" between that invention and the prior art are such that the invention "as a whole" would have been obvious to a person having ordinary skill in the art. 35 U.S.C. § 103 (emphasis added); see also 35 U.S.C. § 103(a) (2006). As this Court has instructed, that inquiry is holistic and flexible, see KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007), and, at least since Chief Justice Taft authored the Court's decision in Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 (1923), it has taken into account a patentee's discovery of a nonobvious source of the problem that the patent overcomes.

Here, the inventors discovered that, in the manufacture of the prescription pharmaceutical oxycodone, a previously unknown molecule was being created and causing unwanted amounts of a potential toxin to appear in the final drug product. The inventors' discovery of this previously unknown molecule allowed them to create the patented invention, the first-ever oxycodone substantially free of the potential toxin.

The question presented is:

Whether the inventors' discovery is relevant to the obviousness inquiry (as section 103 and Eibel Process command), or whether that discovery and other indicia of invention may be ignored as a matter of law, as the Federal Circuit did here.

Cert. petition filed 9/1/16.

CAFC Opinion, CAFC Argument

Geotag, Inc. v. Google Inc., No. 16-268

Question Presented:

Whether a compulsory counterclaim can satisfy the case or controversy requirement under Article III of the Constitution if there was no case or controversy at the time the complaint was filed?

Cert. petition filed 8/26/16, waiver of respondent Google Inc. filed 9/8/16, conference 10/7/16.

CAFC Opinion, CAFC Argument

CSP Technologies, Inc. v. Sud-Chemie AG, No. 16-238

Question Presented:

Whether the Federal Circuit erred by limiting a claim term having an unambiguous plain and ordinary meaning to a narrow implicit definition used in connection with some but not all embodiments disclosed in the specification.

Cert. petition filed 8/22/16.

CAFC Opinion, CAFC Argument

Pactiv, LLC v. Lee, No. 16-205

Question Presented:

Congress has established an ex parte reexamination mechanism at the U.S. Patent & Trademark Office ("PTO"), which permits any individual to submit prior art references and request reexamination of a granted patent claim. Before initiating an ex parte reexamination, the PTO Director must first find that the prior art reference raises a "substantial new question of patentability." If the Director determines that such a question is raised, "the determination will include an order for reexamination of the patent for resolution of the question." 35 U.S.C. § 304 (emphasis added). The question presented is:

Whether, because Section 304 requires the Director to issue an order for a reexamination "for resolution of the question," the "substantial new question of patentability" included in the Director's order delineates the scope of the ex parte reexamination.

Cert. petition filed 8/12/16.

CAFC Opinion, CAFC Argument

Romag Fasteners, Inc. v. Fossil, Inc., No. 16-202

Questions Presented:

Section 43(a) of the Lanham Act prohibits trademark infringement through false representations regarding the origin, endorsement, or association of goods through the use of another's distinctive mark. 15 U.S.C. § 1125(a). Section 35 of the Lanham Act permits a trademark holder who establishes a violation of Section 43(a) to recover the infringer's profits, among other damages. Id. § 1117(a). The federal circuits are intractably divided—six to six—over whether a trademark holder also must establish that the infringement was willful in order recover an award of profits.

The questions presented are:

  1. Whether, under section 35 of the Lanham Act, willful infringement is a prerequisite for an award of infringer's profits for a violation of section 43(a).
  2. Whether and to what extent the defense of laches may bar an award for patent infringement brought within the Patent Act's six-year statutory limitations period, 35 U.S.C. § 286—the same issue this Court granted for plenary review in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, No. 15-927.

Cert. petition filed 8/12/16.

CAFC Opinion, CAFC Argument

Google Inc. v. Cioffi, No. 16-200

Questions Presented:

  1. When construing an ambiguous patent claim, should courts generally consider the record of the patent's prosecution as relevant context, or is prosecution history relevant only if it clearly and unmistakably disavows claim scope?
  2. When a patent applicant has amended a claim to overcome the Patent and Trademark Office's earlier disallowance of the claim, should a court strictly construe the amended claim language against the applicant, as this Court has held, or consider the amendment history to be relevant only to the extent that it clearly and unambiguously disavows claim scope, as the Federal Circuit has held?

Cert. petition filed 8/10/16, waiver of respondent Alfonso Cioffi, et al. filed 8/31/16, response requested 9/12/16.

CAFC Opinion, CAFC Argument

Endotach LLC v. Cook Medical LLC, No. 16-127

Questions Presented:

Petitioner respectfully requests that this case be held in view of SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 136 S. Ct. 1824 (2016) ("SCA II"), No. 15-927. In SCA II, this Court granted a petition for writ of certiorari in order to determine if the defense of laches could bar a claim for patent infringement brought within the six-year statutory limitations period of the Patent Act. The granting of the writ followed this Court's decision in Petrella v. Metro-Goldwyn-Mayer, 134 S. Ct. 1962 (2014), which held the defense of laches cannot be used to shorten the three-year copyright limitations period set forth in 17 U.S.C. § 507(b). In Petrella, this Court noted that "we have never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations period." 134 S. Ct. at 1975.

The Federal Circuit ignored this Court's Petrella guidance shortly thereafter in a divisive 6-5 split en banc opinion in SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 807 F.3d 1311, 1333 (Fed. Cir. 2015) ("SCA I"), and instead carved out a patent-specific approach for laches. The dissent in SCA I recognized the conflict with Petrella, noting "[t]he Supreme Court has repeatedly cautioned this court not to create special rules for patent cases. In light of the Supreme Court's clear, consistent, and longstanding position on the unavailability of laches to bar damages claims filed within a statutory limitations period, we should not do so here." SCA I, at 1333. This Court has already recognized the benefit in reviewing the Federal Circuit's position on this matter and this petition presents the same vital question posed in SCA II:

Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act's six-year statutory limitations period, 35 U.S.C. § 286.

Cert. petition filed 7/25/16, waiver of respondent Cook Medical LLC filed 8/26/16, response requested 9/12/16.

No CAFC Opinion—appeal terminated, CAFC Argument

Merck & Cie v. Gnosis S.P.A., No. 16-125

Questions Presented:

  1. In light of Congress's design and the underlying policies for the America Invents Act, should judge-made fact-findings in inter partes review proceedings be reviewed on appeal for clear error, or may the appellate court rubber-stamp such fact-findings if supported by substantial evidence?
  2. Does the Federal Circuit exceed its authority when it upholds a Patent Trial and Appeal Board ("PTAB") invalidity decision based on a rationale or ground not explicitly made by the PTAB?

Cert. petition filed 7/25/16, conference 10/7/16.

CAFC Opinion, CAFC Argument

Automated Creel Systems, Inc. v. Shaw Industries Group, Inc., No. 16-108

Questions Presented:

  1. Whether the Federal Circuit erred in holding that, even if the Patent Trial and Appeal Board exceeds its statutory authority in instituting an inter partes examination proceeding, the Board's decision whether to institute an inter partes review proceeding is judicially unreviewable at any time; and
  2. Whether it was proper for the Federal Circuit to endorse the Patent Office's disregard of controlling law, effectively overturning binding precedent without any justification.

Cert. petition filed 7/21/16, waiver of respondent Shaw Industries Group, Inc. filed 8/18/16.

CAFC Opinion, CAFC Argument

Cooper v. Square, Inc., No. 16-76

Question Presented:

Whether 35 U.S.C. §318(b) violates Article III of the United States Constitution, to the extent that it empowers an executive agency tribunal to assert judicial power canceling private property rights amongst private parties embroiled in a private federal dispute of a type known in the common law courts of 1789, rather than merely issue an advisory opinion as an adjunct to a trial court.

This is the same question presented as in Cooper v. Lee, No. 15-955. As discussed below, these two Petitions by the same Petitioner (this one on direct review, the other on collateral review) should be held and decided together.

Cert. petition filed 7/13/16, waiver of respondent Square, Inc. filed 8/12/16, response requested 9/9/16.

CAFC Opinion, CAFC Argument

DBN Holding, Inc. v. International Trade Com'n, No. 16-63

Questions Presented:

19 U.S.C. § 1337(a)(1)(B)(i) gives the International Trade Commission jurisdiction to investigate and to deal with the importation of "articles that . . . infringe a valid and enforceable" patent. Yet in a series of recent cases that have repeatedly and deeply divided the Federal Circuit, the Commission has been permitted to expand its jurisdiction to regulate the importation of articles that do not infringe any patent but are merely associated with the alleged infringing conduct of U.S. companies on U.S. soil. And in the decision below, the Commission exercised its expanded jurisdiction to enforce a patent that has been finally adjudicated to be invalid by the federal courts. The questions presented are:

  1. Whether the International Trade Commission's jurisdiction over the importation of "articles that . . . infringe a valid and enforceable" patent extends to articles that do not infringe any patent.
  2. Whether the Federal Circuit erred in affirming the Commission's assessment of civil penalties for the domestic infringement of a patent that has been finally adjudicated to be invalid.

Cert. petition filed 7/13/16.

CAFC Opinion, CAFC Argument

MCM Portfolio LLC v. Hewlett-Packard Co., No. 15-1330

Questions Presented:

The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011), created a new proceeding that permits the Patent Trial and Appeal Board (PTAB) to institute inter partes review (IPR) proceedings to adjudicate the validity of granted patents. In these adversarial proceedings, intended as an alternative to litigation, the PTAB essentially plays the role of a court. In just a few short years, IPR proceedings have resulted in the invalidation of thousands of patent claims, including in this case.

This Court is considering procedural issues relating to IPR in Cuozzo Speed Technologies, Inc. v. Lee, No. 15-446 (argued Apr. 25, 2016). The Questions Presented by this Petition are:

  1. Does IPR violate Article III of the Constitution?
  2. Does IPR violate the Seventh Amendment to the Constitution?

Cert. petition filed 4/29/16, conference 9/26/16, conference 10/7/16.

CAFC Opinion, CAFC Argument

Impression Products, Inc. v. Lexmark Intern., Inc., No. 15-1189

Questions Presented:

The "patent exhaustion doctrine"—also known as the "first sale doctrine"—holds that "the initial authorized sale of a patented item terminates all patent rights to that item." Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008). This case presents two questions of great practical significance regarding the scope of this doctrine on which the en banc Federal Circuit divided below:

  1. Whether a "conditional sale" that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law's infringement remedy.
  2. Whether, in light of this Court's holding in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1363 (2013), that the common law doctrine barring restraints on alienation that is the basis of exhaustion doctrine "makes no geographical distinctions," a sale of a patented article—authorized by the US patentee—that takes place outside of the United States exhausts the US patent rights in that article.

Cert. petition filed 3/21/16, conference 6/16/16, CVSG 6/20/16.

CAFC Opinion, CAFC Argument

Medinol Ltd. v. Cordis Corp., No. 15-998

Question Presented:

In Petrella v. Metro-Goldwyn-Mayer, this Court ruled that if a damages claim is timely under the relevant statute of limitations, judges cannot bar the claim by invoking the defense of laches. 134 S. Ct. 1962 (2014). The timeliness of the claim depends on "Congress' judgment," not the discretion of judges exercising their equitable powers. Id. at 1967.

In this case, the Federal Circuit affirmed the use of laches to dismiss damages claims that were timely under the Patent Act's statute of limitations. The Federal Circuit relied on a 6-5 en banc decision in SCA Hygiene Products Aktiebolag v. First Quality Baby Prods., LLC, 807 F.3d 1311 (Fed. Cir. 2015), that disregarded Petrella's admonition that "courts are not at liberty to jettison Congress' judgment on the timeliness of suit." 134 S. Ct. at 1967. Rather than following Petrella, the Federal Circuit created an exception for damages claims in patent cases.

The question presented is:

May judges use the equitable defense of laches to bar legal claims for damages that are timely under the express terms of the Patent Act.

Cert. petition filed 2/2/16, conference 4/22/16, conference 4/29/16.

CAFC Opinion was unpublished, No CAFC Argument

Cooper v. Lee, No. 15-955

Question Presented:

Nearly 30 years have passed since this Court last applied Article III Separation of Powers principles to declare the authority of Congress to empower an executive agency to adjudicate a private dispute. More recently in a non-agency context, in Stern v. Marshall, 131 S. Ct. 2594 (2011), Justice Scalia's concurring opinion questioned the "multifactors relied upon today [that] seem to have entered our [public rights] jurisprudence almost randomly." Id. at 2621 (Scalia, J., concurring). The two other Stern opinions (majority and dissent) have all members of this Court expressing dissatisfaction with the clarity of Article III public rights jurisprudence: either it "has not been entirely consistent," id. at 2611 (majority), or preceding cases "do not admit of easy synthesis." Id. at 2624 (dissent) (citation omitted). Congress continues to pass laws against this murky backdrop, risking inappropriate expansion of the administrative state.

The question presented is whether 35 U.S.C. §318(b) violates Article III of the United States Constitution, to the extent that it empowers an executive agency tribunal to assert judicial power canceling private property rights amongst private parties embroiled in a private federal dispute of a type known in the common law courts of 1789, rather than merely issue an advisory opinion as an adjunct to a trial court.

Cert. petition filed 1/21/16, conference 5/12/16, conference 9/26/16, conference 10/7/16.

CAFC Opinion was unpublished, No CAFC Argument

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From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.