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The court found the "nature of the copyrighted work" weighed "only slightly" in favor of Perfect 10 because the images were "creative. The court found that the third factor, amount and substantiality of the portion used, favored neither party. The court found that downloading copyrighted works to sample them before buying them at retail was not a form of time-shifting protected by Sony Corp. The court found that music downloaded for free from the internet and retained on the computer was a "direct substitute" for the purchased copy, to the extent that it discouraged users from purchasing a legitimate copy. Does, a coalition of major record labels brought an action against thirty-five John Doe defendants for copyright violations arising out of internet file sharing. The court also stated that it would be illogical to deny Virgin Records the means to obtain the basic identifying information they sought through their subpoena. The court went on to rule that Virgin Records made a prima facie showing of personal jurisdiction for two reasons. Second, the defendant, irrespective of his place of residence, "directed tortious activity into the District of Columbia. Current case law reveals that courts are loosely applying this doctrine to internet cases where a trademark is used in website metatags in a way that runs contrary to the purpose of trademark protection and is harmful to the market. Courts in these cases are overly focused on the misappropriation of goodwill when they should be focused on whether there actually exists a likelihood of confusion. In response to concerns about free-riding, courts have essentially turned initial interest confusion into a substitute test for likelihood of confusion, making it easier for trademark owners to prove trademark infringement in these cases. Recently, initial interest confusion has been applied in the internet context including in metatag cases. The issue of trademark infringement arises in metatag cases when parties use a trademarked term in their website metatags to attract more customers by improving their ranking within search engine results. This Note argues against using initial interest confusion as a less stringent substitute test in the trademark infringement analysis and urges courts to revert to the traditional likelihood of confusion test. It does not argue for or against the doctrine of initial interest confusion as originally conceptualized in the brick-and-mortar world, but rather, argues against its broad application in the internet context. Part I gives background on trademark law and the doctrinal development of initial interest confusion from brick-and-mortar cases to internet cases. West Coast Video set in motion the expansion of the initial interest confusion doctrine into internet cases, leaving in its wake precedent for straying from the traditional Lanham Act evaluation. These cases illustrate a doctrinal change for the worse in trademark law by misinterpreting the interplay between the initial interest confusion doctrine and the internet, misapplying the doctrine, and broadening the scope of the doctrine. In particular, this doctrinal development is harmful to both consumers and competition. The Lanham Act protects trademarks by creating a private right of action by a trademark owner 6. Proving Trademark Infringement A party alleging trademark infringement must prove that the defendant used the trademark in commerce in a way that is likely to confuse consumers as to the source of the product on which the mark is being used. The Restatement (Third) of Unfair Competition delineates a number of factors that can be used by courts to evaluate the likelihood of confusion. If a mark is suggestive, on the other hand, it requires some acquired secondary meaning to warrant protection. In this case, the court found "Slickcraft" to be a suggestive mark because it connoted the image of its product, a boat. On proximity of the goods, the court found that the products were not directly competing, but closely19related in use and function, which increased the likelihood of confusion. Generally, when examining the similarity of trade or service marks, courts consider the marks as a whole and examine whether they look alike, sound the same and mean the same thing. The court in Sleekcraft found that the marks similar in appearance, sound, and meaning, which increased the likelihood of confusion. On the degree of purchaser care, the court found the goods were highquality and expensive, leading to a higher degree of purchaser care because consumers are more likely to pay attention to features of a product, such as the source, when the product is expensive. Grotrian concerned the possibility of confusion as to the source of pianos by competing manufacturers.

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The decision in Ochiai specifically dispelled any distinction between processes of making a product and methods of using a product with regard to the effect of any product limitations in either type of claim. The following decisions are illustrative of the lack of per se rules in applying the test for obviousness under 35 U. The prior art showed the same chemical reaction mechanism applied to other chemicals. Rejection based on prior art teaching the siliconizing process as applied to a different base material was upheld. A Markush grouping is proper if the members of a group share a single structural similarity and a common use. The listing of specified alternatives within a Markush claim is referred to as a Markush group or Markush grouping. Claim language defined by a Markush grouping requires selection from a closed group "consisting of" the alternative members. Treatment of claims reciting alternatives is not governed by the particular format used. Inventions in metallurgy, refractories, ceramics, chemistry, pharmacology and biology are most frequently claimed under the Markush formula, but purely mechanical features or process steps may also be claimed by using the Markush style of claiming. A Markush claim contains an "improper Markush grouping" if either: (1) the members of the Markush group do not share a "single structural similarity" or (2) the members do not share a common use. Where a Markush grouping describes part of a combination or process, the members following "selected from the group consisting of" (or a similar introductory phrase) must be substitutable, one for the other, with the expectation that the same intended result would be achieved. Where a Markush grouping describes part of a chemical compound, regardless of whether the claim is limited to a compound per se or the compound is recited as 2100-147 Rev. The alternatives defined by the Markush group are either alternative chemical compounds as a whole. The alternatives (1) share a "single structural similarity" when they belong to the same recognized physical or chemical class or to the same art-recognized class, and (2) share a common function or use when they are disclosed in the specification or known in the art to be functionally equivalent in the context of the claimed invention. Where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the compounds do not appear to be members of a recognized physical or chemical class or members of an art-recognized class, the members are considered to share a "single structural similarity" and common use when the alternatively usable compounds share a substantial structural feature that is essential to a common use. A recognized physical class, a recognized chemical class, or an art-recognized class is a class wherein there is an expectation from the knowledge in the art that members of the class will behave in the same way in the context of the claimed invention. In other words, each member could be substituted one for the other, with the expectation that the same intended result would be achieved. For example, in the context of a claim covering a disposable diaper, a limitation "the fastener selected from the group consisting of a pressure sensitive adhesive and complementary release material, a complementary hook and loop structure, a snap, and a buckle" would likely be considered an art recognized class because a review of the prior art would establish that it was well known that each member could be substituted for each other with the expectation that the intended result (repositionable and refastenable) would occur. Note that where a Markush group includes only materials from a recognized scientific class of equivalent materials or from an art-recognized class, "the mere existence of such a group in an application tend[s] to prove the equivalence of its members and when one of them [is] anticipated the group [is] therefore rendered unpatentable, in the absence of some convincing evidence of some degree of non-equivalency of one or more of the remaining members. The equivalence must be disclosed in the prior art or be obvious within the terms of Section 103. Thus, a Markush grouping is ordinarily proper if all the members of the group belong to a recognized class (whether physical, chemical, or art recognized) and are disclosed in the specification to possess at least one property in common which is mainly responsible for their function in the claimed invention, and it is clear from their very nature or Rev. Common Use Flows From Substantial Structural Feature Appeal Board in accordance with 35 U. A, above, the members of the Markush grouping may still be considered to be proper where the alternatives share a substantial structural feature that is essential to a common use. For example, in Harnisch, the claims were directed to a Markush group of coumarin derivatives disclosed to be useful as dyes. The claimed coumarin derivatives were not members of a recognized chemical class, encompassing "polyfused N-heterocyclics, cyclic, acyclic and aromatic amines, aryloxyalkylamines, amides, sulfonamides, [and] phthalimides" among others. Furthermore, they were not members of an art-recognized class ("[n]owhere in the record has it been established or even alleged that the variety of compounds included within the explicit scope of the claims are recognized by the art as being functionally equivalent" (Id. However, the court found that the Markush grouping was proper because the claimed compounds, viewed as a whole, all share a coumarin group and the property of being a dye. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use.

However, the proposed regulations should be modified to recognize that ``staffing levels' are not a measure of the absolute number of full-time equivalents, but rather a measure of the ratio of staff to the number of cases. This is true especially if States must include loss of staff to budget cuts and temporary hiring freezes. In our experience, private entities do a poor job of executing traditional State functions. Even well-meaning nonprofit organizations are unable to maintain timeliness, statewide uniformity and accuracy when they take over activities that have traditionally been done by merit system personnel. For-profit entities have even greater incentive to cut corners, regardless of the consequences for households. Staff reductions are controlled by the Governor and the Legislature, not State agencies. In addition, the Department agreed with commenters that cumulative decreases beyond a single year can have a significant impact. A reference to decreases across the State was added since this criterion is intended to apply to the total number of merit personnel in States rather than in each individual local office or county within a State. Major changes include decreases resulting from State budget cuts or hiring freezes, but do not include loss of staff through resignation, retirement or release when the State is seeking to replace the staff within a 6-month timeframe. Evidence of the intent to replace staff includes advertising to fill positions and having sufficient funding in the personnel budget for the new hires. Not all of these types of households need to be affected or features of the certification process need to be more difficult. However, we suggest the regulation require States to analyze the impact of the change on timely processing of recertifications. The final rule should also require States to have a meaningful process for consulting with stakeholders (including program beneficiaries, advocates, community organizations and anti-hunger groups). The potential requirement for county-level impact data will be particularly difficult to implement, and that caseload sizes in many counties are low enough that the validity of data will be highly questionable. The final rule should be amended to also include instances when a caller cannot get through. Again, such a requirement does not reflect the reality of the way many States operate. Even in those States that have county project areas, caseload size and case activity volumes in a given county often can make the gathering of the representative samples necessary to evaluate the effect of a change on that county difficult, and the confidence level of short term evaluations questionable. In addition, the Department agreed with commenters that additional data items are necessary. Some suggestions made for additional data to be reported were not adopted because the Department could not determine how the data would be used in making its determination or what, if any, data would be needed from the State beyond the automatic reporting requirements discussed below. Moreover, it should be broken-out to identify problems affecting specific types of households, such as elderly persons who may have less comfort with technology or limited English proficient households who may have difficulties with online systems not in their language. Final Rule the final rule retains the requirement that States will be required to report on the impact of major changes. However, the most significant modification to this final rule is the adoption of the suggestion from commenters that key ``automatic' reporting requirements be established for all major changes. This change has required some reorganization of the provisions as they appeared in the proposed rule. The impacts can be uneven across urban and rural areas, for example, and can vary based upon the how and when a major change is rolled out in different jurisdictions. In light of the ``automatic' requirements for all major changes discussed above, this determination will focus on what, if any, additional reporting requirements will be necessary.

If the applicant has demonstrated the criticality of a specific limitation, it would not be appropriate to rely solely on the rationale used by the court to support an obviousness rejection. The court held "it is not necessary in order to establish a prima facie case of obviousness. However, when an examiner relies on a scientific theory, evidentiary support for the existence and meaning of that theory must be provided. The known chemical relationship between structurally similar compounds (homologs, analogs, isomers) did not support a finding of prima facie obviousness of claimed zeolite over the prior art because a zeolite is not a compound but a mixture of compounds related to each other by a particular crystal structure. It would not be appropriate for the examiner to take official notice of facts without citing a prior art reference where the facts asserted to be well known are not capable of instant and unquestionable demonstration as being well-known. For example, assertions of technical facts in the areas of esoteric technology or specific knowledge of the prior art must always be supported by citation to some reference work recognized as standard in the pertinent art. The facts constituting the state of the art are normally subject to the possibility of rational disagreement among reasonable men and are not amenable to the taking of such notice. It is never appropriate to rely solely on "common knowledge" in the art without evidentiary support in the record, as the principal evidence upon which a rejection was based. Rather, the Board must point to some concrete evidence in the record in support of these findings. While the court explained that, "as an administrative tribunal the Board clearly has expertise in the subject matter over which it exercises jurisdiction," it made clear that such "expertise may provide sufficient support for conclusions [only] as to peripheral issues. Official notice unsupported by documentary evidence should only be taken by the examiner where the facts asserted to be well-known, or to be common knowledge in the art are capable of instant and unquestionable demonstration as being well-known. However, it is always preferable, when reasonably possible, for the examiner to cite a prior art reference rather than to rely on official notice. In Ahlert, the court held that the Board properly took judicial notice that "it is old to adjust intensity of a flame in accordance with the heat requirement. In appropriate circumstances, it might be reasonable to take official notice of the fact that it is desirable to make something faster, cheaper, better, or stronger without the specific support of documentary evidence. Furthermore, it might be reasonable for the examiner in a first Office action to take official notice of facts by asserting that certain limitations in a dependent claim are old and well known expedients in the art without the support of documentary evidence 2100-301 Rev. If Official Notice Is Taken of a Fact, Unsupported by Documentary Evidence, the Technical Line of Reasoning Underlying a Decision To Take Such Notice Must Be Clear and Unmistakable with the explicit basis on which the examiner regards the matter as subject to official notice so as to adequately traverse the rejection in the next reply after the Office action in which the common knowledge statement was made. If Applicant Traverses a Factual Assertion as Not Properly Officially Noticed or Not Properly Based Upon Common Knowledge, the Examiner Must Support the Finding With Adequate Evidence In certain older cases, official notice has been taken of a fact that is asserted to be "common knowledge" without specific reliance on documentary evidence where the fact noticed was readily verifiable, such as when other references of record supported the noticed fact, or where there was nothing of record to contradict it. If such notice is taken, the basis for such reasoning must be set forth explicitly. The examiner must provide specific factual findings predicated on sound technical and scientific reasoning to support the conclusion of common knowledge. If the examiner is relying on personal knowledge to support the finding of what is known in the art, the examiner must provide an affidavit or declaration setting forth specific factual statements and explanation to support the finding. If the traverse was inadequate, the examiner should include an explanation as to why it was inadequate. Determine Whether the Next Office Action Should Be Made Final be appropriate to rely solely on case law as the rationale to support an obviousness rejection. If no amendments are made to the claims, the examiner must not rely on any other teachings in the reference if the rejection is made final. Furthermore, as noted by the court in Ahlert, any facts so noticed should be of notorious character and serve only to "fill in the gaps" in an insubstantial manner which might exist in the evidentiary showing made by the examiner to support a particular ground for rejection. It is never appropriate to rely solely on common knowledge in the art without evidentiary support in the record as the principal evidence upon which a rejection was based. Appellant argued that certain limitations in the upper part of the body, including the arrangement of the arms, were not taught by the prior art. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. While recognizing that in some cases the particular shape of a product is of no patentable significance, the Board held in this case the shape (chips) is important because it results in a product which is distinct from the reference product (french fries). Omission of an Element and Its Function Is Obvious if the Function of the Element Is Not Desired 2144. Examples directed to various common practices which the court has held normally require only ordinary skill in the art and hence are considered routine expedients are discussed below.