Tuesday, 30 August 2011

The IPO Welsh Language Scheme: Yn llwyddiant?

Since 17 December 2007 it has been possible to file and prosecute a UK patent application in Welsh as well as English.  This was a result of the changes to the Patents Rules that came into force on that day, the main change allowing this being newly worded Rule 14, which reads:
(1) The contents of all documents (including annotations to drawings) contained in an application for a patent must be in English or Welsh.
This is in contrast to the old Rule 20 of the 1995 Rules, which stated:
(1) All documents (including drawings) making up an application for a patent or replacing such documents shall be in the English language.
Other changes were also made in Rules 113, 25, 12, 17, 65 and 9 of the 2007 Rules.

The IPKat wondered at the time what the point of this change was, given that it didn't seem to be mandated by anything in particular, and the possibility of there being a demand for applications being prosecuted in Welsh seemed to be quite small (see here for more information). He even went as far as to make a request under the Freedom of Information Act to find out how many applications had in fact been filed in the first year the scheme was up and running.  The results in January 2009 were not promising: not one application had been filed in Welsh.

It has now been nearly four years since the scheme came in, so I thought I would get an updated answer on how many applications have been filed.  An updated FOI request was made via the email address given on this page of the IPO's website. Within a matter of a few days I received the following very helpful reply:
Thank you for your request dated 24 August 2011 asking about Welsh language patent applications.

This is not information that we would record centrally within the Intellectual Property Office, but having checked with all the work sections of the IPO that process patent applications at an early stage, I can report that none have any record of handling one filed in Welsh.

If we did get one it would certainly be noticed and remembered as requiring translating or processing by a Welsh speaker.
So, can someone remind me again what the point of it all was?

Thursday, 25 August 2011

Changes to the Patents Rules 2007

As has been already mentioned by me to the IPKat here, it has been brought to my attention (thanks to this anonymous comment) that the UK-IPO has arranged to have some changes made to the Patents Rules 2007, as a result of what what can only be fairly described as a bit of a cock-up in legal drafting.  The 2007 Rules were prepared in the form of a complete re-write of the old 1995 Rules, which were considered by the IPO to be too complicated and over-amended.  This caused the IPKat some consternation at the time, as it involved learning a whole new set of rule numbers and new terms to replace the ones that he had only recently memorised and been examined on.  However, they gradually started to become accepted and are now part of the regular IP furniture.

One thing that wasn't objected to at the time, which now seems a bit surprising, is that there were many instances of the term "beginning with" to define time periods, where different wording had been used in the 1995 Rules. We have recently been reminded, in the recent decision in Rigcool v Optima Solutions (commented on by me here), that when this wording is applied to a period in years or months, the last day of the period must be considered to be the day before the anniversary date. The UK-IPO have, however, been operating all this time on the assumption that all such dates in the Rules expired on the anniversary day instead, and have been advising applicants and their representatives accordingly.  The IPO have therefore been implementing their own Rules incorrectly for nearly four years.

As a result of this, the IPO this week issued a new Practice Notice, in which a new Statutory Instrument is mentioned. The Patents (Amendments) Rules 2011, SI 2011 No. 2052 will have the effect, when it comes into force on 1 October 2011, of changing all instances of the phrase "beginning with" to "beginning immediately after".  This applies to the following parts of the 2007 Rules:
Rule 5(2) (International Exhibitions)
Rule 8(5) (Filing of priority documents to support a declaration under section 5(2))
Rule 10(3) (Mention of the inventor)
Rule 12(3) (Applications for the grant of patents under sections 14 and 15)
Rule 12(9) (Applications for the grant of patents under sections 14 and 15)
Rule 18(2) (Missing Parts)
Rule 18(7)(a) (Missing Parts)
Rule 18(7)(b) (Missing Parts)
Rule 19(3)(a) (New applications filed as mentioned in section 15(9))
Rule 20(3)(a) (New applications under sections 8(3), 12(6) and 37(4))
Rule 20(3)(b) (New applications under sections 8(3), 12(6) and 37(4))
Rule 21(1)(a)(i) (Extensions for new applications)
Rule 21(1)(b)(i) (Extensions for new applications)
Rule 22(3) (Periods prescribed for the purposes of sections 15(10) and 17(1))
Rule 22(5)(a)(i) (Periods prescribed for the purposes of sections 15(10) and 17(1))
Rule 22(5)(b)(i) (Periods prescribed for the purposes of sections 15(10) and 17(1))
Rule 22(5)(b)(ii) (Periods prescribed for the purposes of sections 15(10) and 17(1))
Rule 22(7)(a) (Periods prescribed for the purposes of sections 15(10) and 17(1))
Rule 22(7)(b)(i) (Periods prescribed for the purposes of sections 15(10) and 17(1))
Rule 22(7)(b)(ii) (Periods prescribed for the purposes of sections 15(10) and 17(1))
Rule 24(2) (Correcting a declaration made for the purposes of section 5(2))
Rule 26(1) (Publication of application)
Rule 28(2) (Request for substantive examination under section 18)
Rule 28(5)(a) (Request for substantive examination under section 18)
Rule 28(7) (Request for substantive examination under section 18)
Rule 30(2)(a) (Period for putting application in order)
Rule 30(2)(b) (Period for putting application in order)
Rule 30(3)(a)(ii) (Period for putting application in order)
Rule 30(4) (Period for putting application in order)
Rule 31(4)(a) (Amendment of application before grant)
Rule 32(2)(a) (Reinstatement of applications under section 20A)
Rule 32(2)(b) (Reinstatement of applications under section 20A)
Rule 32(8) (Reinstatement of applications under section 20A)
Rule 37(3)(a) (Renewal of patents: first renewal)
Rule 37(4)(a)(i) (Renewal of patents: first renewal)
Rule 40(7) (Restoration of lapsed patents under section 28)
Rule 43(4) (Application for, and cancellation of, an entry that licences are available as of right)
Rule 51(2)(b) (Restrictions on inspection of documents)
Rule 52(4) (Request for information where section 118(4) applies)
Rule 53(3)(a) (Confidential documents)
Rule 57(6) (Corrected translations)
Rule 58(3) (Procedure for making a conversion request under section 81(2)(b)(i))
Rule 58(4) (Procedure for making a conversion request under section 81(2)(b)(i))
Rule 59(1) (Procedure for making a conversion request under section 81(2)(b)(ii))
Rule 59(3) (Procedure for making a conversion request under section 81(2)(b)(ii))
Rule 60 (Request for substantive examination following a direction under section 81)
Rule 66(1) (Beginning of national phase)
Rule 66(2) (Beginning of national phase)
Rule 66(3) (Beginning of national phase)
Rule 67(2) (International exhibitions)
Rule 68(2)(b) (Altered prescribed periods)
Rule 68(3)(b) (Altered prescribed periods)
Rule 68(4)(a) (Altered prescribed periods)
Rule 68(4)(b) (Altered prescribed periods)
Rule 71(4) (Directions under section 89(3) and (5))
Rule 76(2)(a) (Starting proceedings)
Rule 76(2)(b) (Starting proceedings)
Rule 77(8) (Notification of the parties)
Rule 90(1) (Licences following entitlement proceedings)
Rule 90(2) (Licences following entitlement proceedings)
Rule 91(2)(b)(ii) (Period prescribed for applications by employee for compensation)
Rule 96(7) (Submission of observations and observations in reply)
Rule 98(1) (Review of opinion)
Rule 99(4)(a) (Procedure on review)
Rule 99(4)(b) (Procedure on review)
Rule 104(2) (Failure to furnish an address for service)
Rule 108(2)(c) (Extension of time limits)
Rule 113(6) (Translations)
Rule 116(2)(b) (Supplementary protection certificates)
Schedule 1, paragraph 3(3)(a)(i) (The first and second requirements)
Schedule 1, paragraph 3(3)(a)(ii) (The first and second requirements)
Schedule 1, paragraph 3(3)(c) (The first and second requirements)
Schedule 1, paragraph 6(5)(b) (Restriction of availability of biological material to experts)
Schedule 1, paragraph 7(4) (Request for a sample to be made available to expert)
Schedule 5, paragraph 7(6) (Patent applications filed before 7th January 1991)
The effect of all this will be (assuming of course the IPO have got it right this time) that all the relevant periods will now expire on the same day of the month on which the periods start.  Until 1 October, the IPO will, where relevant, be using the get-out clause of Rule 107(3) to extend any period to what they thought it would have been had the Rules been drafted correctly in the first place.  Periods as set out in the Act, however, will not be altered, and must presumably be interpreted accordingly.

As I mentioned in my earlier post, something seemed to be wrong.  It now seems that this has been recognised and something has been done to fix it, even if it is all a bit of a fudge.

Friday, 12 August 2011

Virgin v Premium - yet another chapter

The dispute between Virgin Atlantic Airways and Premium Aircraft Interiors has been rattling along for a while now, and has been keeping various patent attorneys, solicitors, barristers and bloggers quite busy.  Other chapters of the story involve decisions from the High Court and the Court of Appeal (a good starting point if you are interested in finding out more is this IPKat post), as well as proceedings before the EPO.  Even the Supreme Court will apparently be having a go at the matter, having granted Premium leave to appeal earlier this year.

The story relates to European patent EP1495908 concerning an aircraft seating system (right).  The patent was granted in 2007 to Virgin and designated the UK, along with various other European countries. The patent was opposed by Cathay Pacific, Airbus and Premium. The patent survived the opposition and subsequent appeal proceedings, although in an amended form. A decision to maintain the patent as amended was issued yesterday following the decision by the appeal board in T 1259/09, and a B2 publication is due to appear soon.

One argument raised by the opponents during the EPO proceedings was that the European patent should not have been granted with a GB designation, because the request for grant included the following statement (click for a larger version):


The examining division had nevertheless allowed the application to proceed to grant with the GB designation intact.  Both the opposition division and the appeal board concluded that there was nothing they could do, since the ability to correct any such errors was only in the remit of the examining division, and since Premium was not a party to the proceedings before the examining division and not entitled to appeal.  The GB designation therefore stood. There was nothing further the opponents could do, so the only options left for them was to fight the patent in each country, which at least Premium continues to do.

Premium have now had another go at trying to get the GB designation removed, this time through the unusual step of applying for a correction under Rule 50 of the UK Patents Rules 2007.  A decision relating to this request, which resulted in a hearing at the IPO, has now been issued: BL O/281/11.  Premium argued that, since the UK was expressly excluded as a designated state by the applicant, no European patent (UK) ever existed and therefore the UK register should be corrected to reflect this.  According to Premium, nothing that Virgin or the EPO did subsequently could change the fact that there had never been a GB designation, and any suggestion that there was an EP(UK) was an error that should be corrected insofar as it appeared on the UK register.  They put forward the case of Arrow v Merck [2007] EWHC 1900 (Pat) in support of their argument, as this related to a correction being made to remove a GB designation following grant by the EPO. However, as the hearing officer noted, in that case the EPO had realised there had been a mistake and issued a corrigendum afterwards.

The hearing office pointed out that the difference in this case was that the EPO had not considered there was anything it could or would do, even if it considered that there had been a mistake.  For the comptroller to come to a conclusion that any error had been made that could then be corrected, it would be necessary to look afresh at the facts considered previously by the EPO examining division and effectively come to a view on the validity of what had been done.  This would, the hearing officer considered, amount to a review of a determination by the EPO which, particularly in the context of an ex parte request for correction of the register, was not open to him. In contrast to the provisions governing revocation on patentability grounds, the comptroller had been given no power to review decisions made by the EPO, and the hearing officer could not see how he could have any sort of power to do so under the UK Act and Rules. Because there was no basis on which a correction could be made, the request was refused.

Thursday, 11 August 2011

Getting an Examination Fee Refund - Nullius in Verba*

According to Article 94(1) EPC, a request for examination has to be accompanied by an examination fee for the request to be deemed filed.  The fee, according to RFees A2.6, is currently set at 1480 Euros, or 1645 Euros for the case of an international application where no supplementary search is drawn up by the EPO.  In either case this is, to many people, a not inconsiderable amount of money.

Since examination at the EPO is considered to be separate from search (even though they are nowadays increasingly merging together), RFees Article 11 allows for the situation where a refund of the examination can be made if the application is withdrawn, refused or deemed withdrawn before examination begins.  A full refund can be made if this happens before the Examining Division (ED) assumes responsibility, while a 75% refund is made if the ED have assumed responsibility but substantive examination has not begun.

According to Rule 10(2) EPC, the ED becomes responsible from the time when a request for examination has been filed.  There are therefore not many cases where a full refund would be made, although there may be many more where a partial refund could be made, for example once a search has been done and there is clearly little chance of getting anything worthwhile granted. If the refund is more important to the applicant than the application itself (in which case there is very little point continuing anyway, but that is a different story), a letter could be sent to the EPO withdrawing the application but only on condition that a refund of the examination fee is possible.  This does, however, beg the question of whether the applicant should take the ED's word for it if they state that examination has begun but the examiner has not quite finished preparing the examination report, and therefore no refund will be made.  

For most applicants, the easiest and cheapest approach when trying to get a refund would simply to be to take what comes, as any fight is bound to be more expensive than the potential refund.  For some, however, it may be a matter of principle.  This appears to be the case for Medtronic Vascular, Inc., who found the ED's statement that examination had begun unconvincing when asking for, and being refused, a refund.  After requesting and receiving a decision on the matter, in which the refund was still refused, the ED's decision was appealed.  A decision of the legal board of appeal in case J 25/10 has now issued, in which the board comprehensively castigates the ED for not behaving properly. The decision is due to appear in the Official Journal of the EPO. 

The board noted that there was "no indication whatsoever in the file showing, by reference to objective criteria, that the Examining Division had performed a concrete act of any kind which could be regarded as a start of substantive examination in the regional phase after the request for examination had been filed" (reasons point 6).  The main points in the board's decision are in the following paragraphs: 
10. The only point on which the refusal for the partial refund was then based was "that the primary examiner confirmed that he started already with substantive examination"(point 3 of the Reasons). This is no more than an unsubstantiated assertion. Article 11(b) RFees establishes clear conditions which must be fulfilled in order for a partial refund of the examination fee to be made. Whether these conditions have been fulfilled in any particular case is a question of fact. If the request is to be refused on the basis that these conditions have not been met, the Examining Division must give reasons why the conditions are not met, having established what the facts are. It is not sufficient simply to assert that a condition of a provision is not met without reference to underlying facts which objectively demonstrate that this is so. To do so would amount to an arbitrary decision which is not verifiable and goes against all legal certainty. In G 3/08 (OJ EPO 2011, 10) the Enlarged Board of Appeal said that "the predictability and verifiability of all state action are indispensable elements of a democratic legal order", these being amongst the principles which the EPO must support (point 7.2.1 of the Reasons). The Board further said: "Another essential element of a democratic legal order is the principle that a public authority is bound by law and justice. This is supplemented by the principle of uniform application of the law. Both principles are designed to ensure predictability of jurisdiction and hence legal certainty by preventing arbitrariness" (point 7.2.3. of the Reasons). A mere assertion that a condition laid down in a legal provision is not met, without sufficient substantiation by reference to the underlying facts, violates these principles.


11. As the appellant points out, without factual information relevant to the criteria of when substantive examination began, the date of this event cannot be objectively determined. In the present case this resulted in the determination appearing to be at the discretion of the Examining Division. The appellant points out that the Examining Division had been asked for the exact date of the start of substantive examination and the criteria applied to its assessment. However, no such information was provided. Without such information, the appellant could not determine the correctness of the decision. The Board would add that without such information it also cannot determine whether the decision that substantive examination had begun was correct or not. The decision was therefore neither predictable nor verifiable, contrary to the principles set out in G 3/08 loc. cit., above.


12. It appears to the Board that the application of these principles is particularly important in the present case for two reasons. First, since the decision which the Office, via the Examination Division, is required to take involves its own financial interests, it is important for the public confidence in the Office that the decision-making process should be transparent. For the same reason it is also important that such decisions should be reviewable by the Boards of Appeal. Second, in the present case any relevant information lay solely within the knowledge of the Office. It is not a case in which, for example, a communication had been sent to the applicant, so that there were externally verifiable facts on which a decision to refund fees could be based and reviewed. This makes it important that the applicant (and the Board of Appeal) knows what the actual underlying facts are on which the decision was based.


13. In conclusion, it cannot be accepted as established in this case that substantive examination had already begun when the application was withdrawn.
As a result, the applicant had the decision to refuse the refund set aside, and had their appeal fee and 75% of their examination fee refunded.

I admire the tenacity of the applicant in this case, in what appears to be an appeal based on the principle of fair play, in that if the ED is to make any kind of decision that affects an applicant it must be reasoned and objectively supported.  This is a theme that has been playing out in other recent decisions relating to reasons for refusing applications and other requests (other examples being T 1442/09 and T 933/10), where appeal boards have also found in favour of applicants where they have found divisions of the EPO not substantiating their reasons properly. This can only be a good thing.  If applicants and their representatives are expected to follow the increasingly rigidly defined rules of the EPC, then surely the EPO divisions should themselves do the same.

*Roughly translated as "Take nobody's word for it", being the motto of the Royal Society (although they don't really follow it any more). 

Wednesday, 10 August 2011

Free beer and covert viewing

When an invention is defined in a claim in terms of a result to be achieved, it is often termed a 'free beer' claim, in the sense that the invention would be a good thing but the claim does not define how it is actually achieved.  When the patent specification as a whole does describe at least one way of achieving the result, the problem is one of a lack of clarity, rather than sufficiency, and can be resolved by amending the claims so that they define something the applicant has contributed to the art rather than a mere wish list of features.  At the European patent office, any free beer is typically objected to (even during Oktoberfest), and examiners will tend to require more technical features to be imported.  At the UK patent office, however, at least small amounts of free beer are more typically allowable, usually as part of a functional statement at the end of a claim, although in some cases more extensive functional language can be allowed.  Too much, however, and a UK examiner will object on grounds of lack of clarity. This was the case for application GB0904563.4 (previously published as WO 2008/035107), which has led to to the recent decision BL O/243/11, the applicant being The Secretary of State for Defence. Claim 1 of the application as-published read as follows:
1. A lens arrangement, suitable for looking through pinholes comprising a converging eyepiece type lens apparatus used without a conventional objective lens and arranged such that the lens arrangement projects a "virtual" aperture to a point in object space beyond a first end of the lens arrangement, said first end being the end of the lens arrangement closest to the subject being viewed, such that the virtual aperture limits the pencil of rays passing into the lens arrangement, wherein the lens arrangement contains no integral physical lens stop.
There are a number of obvious problems with this claim, one of which is clarity.  Following rounds of correspondence with the examiner, the claim was amended to read:
1. A lens arrangement, adapted for looking through a remote pinhole comprising a plurality of lens elements designed and configured to operate without the presence of an integral physical lens stop, such that in use the lens arrangement defines a “virtual aperture” in a pre-determined plane in object space remote from a first end of the lens arrangement, said first end being the end of the lens arrangement closest to the subject being viewed, wherein the virtual aperture acts as a remote entrance pupil in object space beyond the first end of the lens arrangement and defines a pencil of rays that passes through the lens arrangement.
The examiner considered that, even after amendment, there was too much free beer in the claims. He maintained objections that the claimed invention was unclear and was not supported by the description because the claims defined the invention in terms of the result to be achieved (i.e. a stopless lens) rather than the technical features of the lens arrangement that achieved the result, and the embodiments described did not support such a broad claim. The applicant did not manage to overcome the objections, and the matter went before a hearing officer at the IPO.

Before the hearing officer the applicant argued that, following the decision in No-Fume v Frank Pitchford & Co. Ltd. 52 RPC 231, there were many ways the invention could be implemented and the claims should not need to be limited to only one set of specific parameters. According to the applicant, conventional thinking was that a physical lens stop would be required. The lens arrangement of the invention made this redundant through the creation of a virtual aperture in the object space of the arrangement. The hearing officer accepted that the meaning of the term "virtual aperture" was sufficiently clear, but then went on to point out that the application outlined the features of the invention as being equivalent to using a conventional converging telescope eyepiece in reverse (as for example in the above figure).

As a result, the apparatus claims did not define the invention sufficiently to avoid reading directly on to an already known telescope eyepiece. The fact that the claims indicated that the lens arrangement was adapted for looking through a remote pinhole only specified how the lens arrangement could be used in practice, but did not distinguish the arrangement over a conventional telescope eyepiece. Specifying that the arrangement was designed and configured to provide the desired effect would, following Kirin-Amgen, only be allowable if the product itself was novel and inventive. The claimed invention did not therefore meet the requirements of section 14(5)(a) and (b) in that it did not define the invention and was not clear.

Although the claims in the form discussed were not allowable, the hearing officer allowed the applicant another opportunity to submit further amendments by extending the compliance period. As of today, it looks (thanks to the IPO's Ipsum file inspection service) like the application is still not quite finished.

As far as I can see, the lesson to be learned is to be careful with relying on functional definitions unless you have plenty of backup definitions that are more grounded in technical features of the invention.  It is probably not enough to have a myriad differently defined specific embodiments unless you have some overarching technical definitions to tie at least some of them together because the only option you might end up with could be a single narrow one. It is easy with hindsight to see this being a problem; the clever trick is to spot it in advance.

Thursday, 4 August 2011

Rule 126 EPC & deemed delivery

As part of my day job in the real world I have been looking into how Rule 126 EPC is interpreted, and in particular what is meant by Rule 126(2), which states:
"Where notification is effected by registered letter, whether or not with advice of delivery, such letter shall be deemed to be delivered to the addressee on the tenth day following its posting, unless it has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be."
It would be impolite of me to go into the particular details of why this is of interest, at least while the issue is still alive (an appeal is currently pending). I shall just say that someone has been attempting to put a somewhat unconventional interpretation on Rule 126(2) in an apparent attempt to get themselves out of a hole. Fortunately this someone does not work where I do.

The conventional interpretation of the "ten day rule", as it is usually known, is that the deadline for responding to a communication from the EPO where Rule 126(2) applies (i.e. a due date that is specified as running from notification of the communication) is calculated by first adding 10 days to the date on the communication, then adding the appropriate number of months (bearing in mind Rule 131), then taking into account whether the resulting day is one on which the EPO is not open for business (see Rule 134, together with the EPO's holidays for 2011 here) and finally determining the actual final day on which the act required can be done, whether this is responding to an examination report, decision to refuse or whatever.

So far, so easy. If the rule is followed to the letter, there should be no doubt about what the final due date will be.  Some people do, however, still get it wrong (see here for a good example of why it is very important to do the calculations in the right order), the results of which can be catastrophic, or at least expensive and/or embarrassing.

One interesting way of getting it wrong is, as I have discovered, interpreting Rule 126(2) to mean that the notification is only effected when the actual person to whom the communication is addressed sees it. This would normally be the patent attorney representative for the application. Could it possibly be the case that the date from which a due date is calculated is when the representative first sees the communication, for example when he gets back from holiday? This is what was argued in T 743/05, which resulted from a grounds of appeal being filed late, at least according to the conventional way of interpreting Rule 126(2) (corresponding to Rule 78(2) EPC1973). The representative argued that, since the decision to revoke the patent was first seen by him on 24 May 2005, this was the date on which the four month period for filing the grounds of appeal started, even though the decision dated 12 May 2005 had been received by the representative's office on 16 May 2005.  The representative argued that the wording in Rule 78(2) "delivered to the addressee" should be interpreted as "delivered to the person to whom the notification is addressed", which was himself.  As an auxiliary, however, the representative requested re-establishment of rights under Article 122 (or restitutio in integrum, as it was then called) since, by applying the literal meaning of Rule 78(2) the representative had taken all due care and there was no reason to believe that the provision should be interpreted otherwise.

Unsurprisingly, despite the representative's valiant attempt the board of appeal was having none of it and dismissed the appeal.  The main reason behind not taking the "literal meaning" of the rule was that this "would lead to an inextricable situation which would have as a consequence uncertainty for all the users of the European patent system. The answer to the question whether notification has effectively taken place could in that case depend entirely on the honesty, goodwill or organisational skills of the professional representative" (reasons, 1.7).  The request for re-establishment also had to be refused because the claimed interpretation, being a mistake of law on the part of the representative, could not be excused given the requirements for becoming a qualified representative (all grandfathers should take note, as it unlikely they would be given any different treatment to those who have taken and passed the EQEs).  All due care had not therefore been taken by the representative.

What I wonder now is whether, given exactly the same kind of fact situation, i.e. a letter being received by a representative's office within 10 days but the named representative not actually seeing it until later, it could ever be the case that the due date for responding could be any later than the usual 10 days + x months (+r134 extra days, as required).  I think not, and would expect a referral to the enlarged board if a board of appeal was minded to decide otherwise, but would like to see what others might think if they were placed in this situation. Any ideas?