WAYNE K. PFAFF, Petitioner v. WELLS ELECTRONICS, INC., Respondent.

No. 97-1130

October Term, 1997

MAY 20, 1998

On Writ of Certiorari to the United States Court of Appeals for the Federal Circuit.

BRIEF OF AMICUS CURIAE FEDERAL CIRCUIT BAR ASSOCIATION IN SUPPORT OF PETITIONER

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OUT OF TIME

UNOPPOSED MOTION TO EXTEND TIME FOR FILING BRIEF

Amicus Curiae Federal Circuit Bar Association, a national organization of approximately 2,200 members who practice before the United States Court of Appeals for the Federal Circuit, respectfully moves for an extension of time to file the attached brief Amicus Curiae in support of the Petitioner. Briefs in support of the Petitioner were due on May 14, 1998. An attorney for Amicus contacted Jerry Selinger, the Counsel of Record for the Petitioner, and James Hall, the Counsel of Record for the Respondent, on May 14, 1998, by telephone. Counsel for both parties stated that they would consent to this motion.

A printer's proof of a version of the attached brief was available on May 14, 1998, and was transmitted on that date by facsimile to the Counsel of Record for the Respondent. An attorney for the Amicus also explained to the Counsel for the Respondent the intended changes to the proof. Accordingly, Amicus submits that no prejudice to either party should result in the granting of this motion.

Collectively, the members of the Amicus represent the owners of thousands of patents and others in the technological community, and have an interest in developing a reliable patent system. Amicus presents this brief to illustrate how the issues of this case impact the technological community. Also, Amicus presents a unique proposal for resolution of the issues, one which serves the purposes of the patent system and the interests of the technological community as a whole. Amicus seeks this extension so that it could properly finalize this proposal.

Given that this motion is unopposed, that Counsel for amicus have taken steps to prevent prejudice to the parties, and that the Respondent has sought for and received an extension of time to file its brief, Amicus respectfully requests that the Court grant this motion.

Respectfully submitted,

FEDERAL CIRCUIT BAR ASSOCIATION

George E. Hutchinson * Executive Director, Federal Circuit Bar Association 1300 I Street, N.W., Suite 700 Washington, D.C. 20005 (202) 408-4000

* Counsel of Record

Robert J. Carlson Christensen, O'Connor, Johnson & Kindness 1420 Fifth Avenue, Suite 2800 Seattle, WA 98101

Denise W. DeFranco Choate, Hall & Stewart Exchange Place 53 State Street Boston, MA 02109

Rudolph P. Hofmann Schwegman, Lundberg, Woessner & Kluth 121 South Eighth Street, Suite 1600 Minneapolis, MN 55402

James F. McKeown Evenson, McKeown, Edwards & Lenahan 1200 G Street, N.W., Suite 700 Washington, D.C. 20005

Counsel for Amicus

George E. Hutchinson *, Executive Director, Federal, Circuit Bar Association, 1300 I Street, N.W., Suite 700, Washington, D.C. 20005, (202) 408-4000

* Counsel of Record

Robert J. Carlson, Christensen, O'Connor, Johnson & Kindness, 1420 Fifth Avenue, Suite 2800, Seattle, WA 98101

Denise W. DeFranco, Choate, Hall & Stewart, Exchange Place, 53 State Street, Boston, MA 02109

Rudolph P. Hofmann, Schwegman, Lundberg, Woessner & Kluth, 121 South Eighth Street, Suite 1600, Minneapolis, MN 55402

James F. McKeown, Evenson, McKeown, Edwards, & Lenahan, 1200 G Street, N.W., Suite 700, Washington, D.C. 20005

Counsel for AmicusGeorge E. Hutchinson *, Executive Director, Federal, Circuit Bar Association, 1300 I Street, N.W., Suite 700, Washington, D.C. 20005, (202) 408-4000

* Counsel of Record

Robert J. Carlson, Christensen, O'Connor, Johnson & Kindness, 1420 Fifth Avenue, Suite 2800, Seattle, WA 98101

Denise W. DeFranco, Choate, Hall & Stewart, Exchange Place, 53 State Street, Boston, MA 02109

Rudolph P. Hofmann, Schwegman, Lundberg, Woessner & Kluth, 121 South Eighth Street, Suite 1600, Minneapolis, MN 55402

James F. McKeown, Evenson, McKeown, Edwards & Lenahan, 1200 G Street, N.W., Suite 700, Washington, D.C. 20005

Counsel for Amicus [*i]

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The Federal Circuit Bar Association (FCBA) as amicus curiae files this brief in the appeal of Pfaff v. Wells Electronics, Inc., 124 F.3d 1429 (Fed. Cir. 1997). Written consent to the filing of this brief has been obtained from the petitioner and the respondent and is being filed herewith.

The FCBA is a national organization comprising of approximately 2,200 members who practice before the United States Court of Appeals for the Federal Circuit. The FCBA offers a forum for common concerns and dialog before the Bar and the Federal Circuit, government counsel and private practitioners, litigators and corporate counsel. Collectively, the members of the FCBA represent and advise owners of thousands of patents, and thus, have an additional interest in developing a reliable patent system as a part of the intellectual property landscape.

Pursuant to Rule 37.6, none of the parties or their counsel have contributed either substantively or monetarily to the preparation of this brief. Specifically, only the amicus, its members and its counsel have made a monetary contribution to the preparation and submission of this brief.

[*2] SUMMARY OF ARGUMENT

The Federal Circuit Bar Association submits this brief in support of the Petitioner. The patent law intends to grant a patent applicant a one year window between the time of a first sale of the article for which protection is sought and the filing of his application. The patent statutes, and case law interpreting them, should provide clear guidelines to inventors and patent practitioners, so that they may know with as much certainty as possible the deadline by which valuable patent rights must be claimed. The reality of commerce is that sales and sale activity often take place before an invention is finalized, and in such cases, inventors have need of a reliable standard by which the deadline may be judged. Case law in the last decade, however, has given rise to mounting uncertainty in the application of the statutory on-sale bar. The lower courts have rendered decisions which are contradictory and confusing. There is need of a bright-line test as to the event which begins the running of the one year on-sale bar.

The Federal Circuit Bar Association in this brief urges the Court to return to the standard of reduction to practice with a modification to provide a workable, bright-line test. The reduction to practice standard finds support in historical precedent, is familiar to practitioners, and has with it a significant body of interpretive case law. The proposed standard overcomes the shortcomings of the currently abandoned reduction to practice standard where the invention was required to be on-hand and tested. Under the proposed standard, actual completion of the invention is not required for there to be a reduction to practice. Instead, a form of reduction to practice occurs when an invention is sufficiently described in a tangible form so that one skilled in the art to which the invention pertains can make and use the invention, a standard also well understood and defined in the patent law.

[*3] ARGUMENT

The Patent Clause of the United States Constitution authorizes Congress "to Promote the Progress of Science and useful arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries." U.S. CONST. art. I, § 8, cl. 8. In implementing the constitutional mandate through the enactment of the Patent Act, Congress has granted inventors the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for a period of years in exchange for public disclosure of those inventions. Markman v. Westview Instruments., Inc., 116 S. Ct. 1384, 1387 (1996). The patent system balances competing concerns. The grant of a patent encourages innovation and disclosure of useful knowledge because an owner of a patent can make the invention public without it losing its commercial value. Patents also encourage further innovation because the public disclosure becomes the "building block" for improvements and new inventions. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 151 (1989). Accordingly, to serve the Constitutional purpose, a patent must provide meaningful protection or inventors will choose to keep their inventions secret and impede the development of new knowledge.

Toward this end, Congress has specified the conditions that must be met in order to warrant the grant of patent. A patent may be granted only to one who discovers a new and useful product or process. 35 U.S.C. § 101 (1994). The patent must contain a description of the invention in sufficient detail so [*4] that a person skilled in the art can practice the invention, and the patent must particularly point out and distinctly claim the subject matter that the inventor regards as the invention. 35 U.S.C. § 112 (1994). The invention must not have been obvious to one skilled in the art. 35 U.S.C. § 103 (1994). Also, the invention must not already be in the public domain. 35 U.S.C. § 102 (1994). A lack of a bright-line rule as to this last point, the subject matter of this appeal, makes uncertain whether a patentee's conduct prior to filing of a patent application has in fact put the invention into the public domain, or whether the conduct has begun the running of a statutory bar.

The present interpretation of the statutory on-sale bar provision of 35 U.S.C. § 102, viz. section 102(b), creates substantial uncertainty in the technological community. Currently, the courts apply a "totality of circumstances" test to determine whether the on-sale bar should preclude patentability. Thus, in making a determination as to whether an invention was "on-sale" for purposes of 35 U.S.C. § 102(b), "all of the circumstances surrounding the sale or offer to sell, including the stage of development of the invention and the nature of the invention, must be considered and weighed against the policies underlying § 102(b)." Pfaff v. Wells Electronics, Inc., 124 F.3d 1429, 1433 (Fed. Cir. 1997)(citing Micro Chem., Inc. v. Great Plains Chem. Co., 103 F.3d 1538, 1544 (Fed. Cir. 1997)).

The totality of circumstances test was first enunciated in UMC Electronics Co. v. United States, 816 F.2d 647 (Fed. Cir. 1987). The court was squarely faced with the question of whether reduction to practice before the critical one-year date [*5] was required to invoke the on-sale bar of 35 U.S.C. § 102(b). Id. at 652. After reviewing the policies underlying the bar, the court concluded that "reduction to practice is not always a requirement of the on-sale bar," Id. (relying on General Electric Co. v. United States, 654 F.2d 55, 61-64 (Ct. Cl. 1981), for the policies underlying the on-sale bar). The court stated that while "'reduction to practice' is an important analytical tool" for an on-sale analysis, it is but one factor to be considered in applying a "totality of circumstances" test. Id. at 656. The UMC court acknowledged, however, that the totality of circumstances standard "does not lend itself to formulation into a set of precise requirements . . . ." Id. at 656. Indeed, the court noted that the possible circumstances surrounding what would otherwise appear to be commercialization outside the grace period "cannot possibly be enumerated." Id. at 656-57. Thus, the court appreciated that it had not formulated "a standard for determining when something less than a complete embodiment of the invention w[ould] suffice under the on-sale bar." Id. at 657.

The overwhelming consensus among practitioners has been that the totality of circumstances test provides no single, clearly discernible standard for determining the applicability of the on-sale bar. See, e.g., Janice M. Mueller, Conception, Testing, Reduction to Practice: When Is It Really On Sale?, 80 J. PAT. & TRADEMARK OFF. SOC'Y ___, (forthcoming May 1998)("the Federal Circuit's on sale decisions have failed to produce any clear consensus on the extent-of-development issue; the court's view on the degree on 'completion' required has varied from case to case in almost cyclical fashion"). Instead, the commentators have acknowledged that the Federal Circuit's "totality of the circumstances" standard is "inherently uncertain," making "predictability ... an elusive goal." Edward G. Poplawski & Paul D. Tripoli, II, The Impact of Federal [*6] Circuit Precedent on the "On-Sale" and "Public-Use" Bars to Patentability, 44 AM. U.L. REV. 2351, 2390-91 (1995).

The totality of circumstances test must be coupled with the broad array of possibilities for introduction of the invention into the marketplace. For example, one end of the spectrum of the varying stages of development during which an invention may be placed on sale is where inventors test the marketability of their inventive ideas to the relevant market even before the inventive solution to the idea has been fully realized. If the market, or a given player in the market, recognizes the potential of the inventive idea, the inventors may then proceed to complete the invention, perhaps even with the financial assistance of the interested party. Indeed, some of the most dynamic forces in the national economy, such as those embodied in the relationship between start-up companies and venture capitalists, are the epitome of this scenario. When a small company develops an idea that would otherwise be too costly to realize fully on its own, it necessarily has to "sell" its ideas to the market place to gain financial support. In the biotechnology industry, for example, the extremely high cost of obtaining regulatory approval for the introduction of a new drug generally prohibits small biotechnology companies from proceeding without some outside source of capital. The other extreme, of course, is where an invention is not placed in the stream of commerce until after it is completed, "on hand," and fully tested.

Also, some inventions are themselves driven by the competitive forces in the market place. Where a company (or a particular government agency) has a need for a solution to a particular problem but lacks the core competency to design or invent a solution to the problem, it often puts a request for proposals into the relevant stream of commerce. Several competitors in the market place work to develop a solution to [*7] the problem and then submit a bid in response to the request for proposals. The request may require that an actual prototype be submitted with the proposal or may require only detailed specifications that fully sets forth the proposed solution. In either event, the competitive proposal reflects an invention, and the act of submitting the proposal has commercial ramifications. Accordingly, application of the totality of circumstances test to the spectrum described above makes unduly difficult the task of determining when an inventor's conduct has begun the running of a statutory bar.

Given the realities of business and the shortcomings of the totality of circumstances test in determining the beginning of the running of a statutory bar, inventors are unable to approach this issue with an acceptable degree of predictability and comfort. Further, given that the totality of circumstances has a different meaning for many people, the question as to whether a patent is valid under 35 U.S.C. § 102(b) ultimately depends upon the sympathies and prejudices of any one of the hundreds of federal judges that patentees or accused infringers may find themselves before at some unknown time in the future.

In as much as businesses often must begin to commercialize their inventions months before filing a patent application, as discussed above, uncertainty in whether the invention is in the public domain is not a phantom issue. Many of the technologies of businesses seeking patent protection are new, dynamic, and result in the design and sale of products often having life cycles that are very short. Early sales of products are necessary for businesses to grow and compete and patents are necessary for the patentees to stay in business. Businesses wishing to pursue new products must often make [*8] decisions regarding significant initial investments and bring new products swiftly to market. Early market acceptance of a new product provides a very import factor on which to base these decisions. Uncertainty as to whether the early sales will put the product in the public domain may well deter businesses from making such investments and introducing new products or from seeking patent protection in favor of keeping their inventions secret. n1

n1 Businesses recognize that uncertainty is a fact of life in the patent process. For example, the doctrine of equivalents introduces a dose of uncertainty as to the scope of patent rights making it difficult for patentees and accused infringers to asses the outcomes of patent infringement suits. Also, patent infringement suits typically involve a counter claim of patent invalidity where accused infringers will spend hundreds of thousands of dollars searching for and analyzing prior art not considered by the Patent Office during its examination of the patent application. Thus, a patentee must often go through trial to determine whether there is an infringement of a valid patent. However, an issued patent has value to the patentee long before it is ever litigated, and the public will derive benefit from the patent disclosure even if the patent is never enforced. But the uncertainty discussed above occurs at the very beginning of the patent process, and impacts decisions on whether to keep the invention a secret or whether to develop a product at all. It is this uncertainty which deprives society of innovation and disclosure and thus frustrates the purposes of the patent system.

Additionally, a bright-line standard as to when an invention is placed in the public domain permits inventors to make effective use of all of their time to file patent applications on their inventions. Uncertainty as to the allotted time for filing a patent application operates to deprive prudent applicants of all of their time in that they instead will choose to file early in order to preserve their rights. The lower courts have recognized that the purposes of the patent system are not served by forcing premature entry into the patent application process upon inventors who are still developing their inventions. UMC [*9] Electronics Co. v. United States, 816 F.2d 647 (Fed. Cir. 1987) (Smith, J., dissenting). Additionally, the public interest is not served by a patent system that wastes inventors resources by requiring them to file patent applications before the commercial value of the inventions can be determined, Aerovox Corp. v. Polymet Mfg. Corp., 67 F.2d 860, 862 (2d Cir. 1933) (L. Hand, J.), or by "the waste of Patent Office resources in processing half-baked inventions," Gould, Inc. v. United States, 579 F.2d 571, 584 (Ct. Cl. 1978).

Further, in 1992, the U.S. Patent and Trademark Office formed the Advisory Commission on Patent Law Reform from a diverse a group of representatives from businesses, universities, the Patent Bar and the public to assess the state of the patent system. Among its findings, the Commission concluded that the lack of clarity created by the "totality of circumstances" standard was contributing to an erosion in the application of a "cogent, understandable, and predictable fashion" of the principles underlying the on-sale bar. The Advisory Commission on Patent Law Reform: A Report to the Secretary of Commerce (1992) (noting that it is "often difficult for the inventor and the courts to determine whether and when an invention has been 'offered' for sale.") The Commission found that "the uncertainty in determining to what extent the invention must be developed before the invention can subject to the 'on-sale' bar" stemmed largely from the fact that the "case law does not provide a consistent standard for determining whether the invention is complete to the degree necessary for the invention to be placed "on-sale.'" The Commission noted that the result of this uncertainty has been twofold. First, the lack of a clear, predictable standard has contributed to the increase in the number of patent cases and the cost of litigating those cases. Second, lack of certainty is an obstacle to the free interaction of ideas and capital that fuels the types of economic growth that characterize the market today.

[*10] As in statutes of limitations generally, the start of a statutory bar must be reasonably certain. Congress and this Court have long recognized the need for certainty in this regard. See, Andrews v. Hovey, 123 U.S. 267, 274 (1887). The present requirements of substantial completion and totality of the circumstances have interjected a dose of uncertainty in the law which frustrates the purposes of the patent system.

Petitioner's sought-after reduction to practice standard as a bright-line test serves not only to effectuate the policies of the statutory bar but also to make the statutory bar analysis consistent with traditional patent law analysis. "There are no degrees of reduction to practice; either one has or has not occurred." Wolter v. Belika, 409 F.2d 255, 262 (C.C.P.A. 1969) (Rich, J., dissenting). Reduction to practice is a term of art now codified in 35 U.S.C. § 102(g) (1994). Under 35 U.S.C. § 102(g), an invention is not made until it is reduced to practice. There is a large and well-reasoned body of case law concerning the concept of reduction to practice. Extensive precedent governs whether an invention has been reduced to practice. The term "reduction to practice" arose out of patent interference practice where the issue to be determined, as between contesting patent applicants, is which applicant was the first inventor. More on point, however, 35 U.S.C. § 102(g), serves to preclude patentability of an invention when some other party already has reduced the invention to practice and has not abandoned, suppressed or concealed it. E.g., E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1437 (Fed. Cir. 1988). In the latter application, where 35 U.S.C. § [*11] 102(g) is used as a bar to patentability much in the same way as 35 U.S.C. § 102(b), sound policy warrants a corresponding and consistent definition of "invention" between the subparts of § 102. Therefore, as long as the reduction to practice standard is not disregarded, it can be uniformly applied by inventors, practitioners, judges and the like to determine whether an inventor's conduct begun the running of a statutory bar.

As petitioner Pfaff explains more fully in his brief, the concept of reduction to practice was applied to analysis of the on-sale bar section 102(b) for several decades prior to 1987. Numerous cases predating the establishment of the Court of Appeals for the Federal Circuit show that the regional circuits explicitly required a reduction to practice as an event triggering the on-sale bar. See, e.g., Timely Products Corporation v. Arron, 523 F.2d 288, 302 (2d Cir. 1975). The Federal Circuit itself employed the concept of reduction to practice in various early cases, including King Instrument Corporation v. Otari Corporation, 767 F.2d 853 (Fed. Cir. 1985), and Great Northern Corporation v. Davis Core & Pad Company, Inc., 782 F.2d 159 (Fed. Cir. 1986). Indeed, the Federal Circuit did not depart from the reduction to practice standard in Section 102(b) until its decision in UMC Electronics Company v. United States, 816 F.2d 647 (Fed. Cir. 1987). The return to a reduction to practice standard will restore a measure of certainty to application of section 102(b) and is consistent with the interpretation of "invention" as set forth in section 102(g).

[*12] Abandonment of the reduction to practice standard has recently led to numerous inconsistent decisions, troubling for inventors and patent practitioners. In the case of Seal-Flex v. Athletic Track and Court Construction, 98 F.3d 1318 (Fed. Cir. 1996) concerning the installation of a high school athletic track, the Federal Circuit rejected the lower court's use of a "sufficiently complete" standard in place of reduction to practice, in part because of the need for experimentation of the running track under actual use conditions, in order to determine whether it was sufficiently durable. As petitioner's brief points out, under the "sufficiently complete" standard, the inventor has no way of knowing "until informed by a judge, at what stage his experimental method became...sufficiently complete to start the time bar to patentability." Petitioner's Brief at 27, citing Seal-Flex at 1323.

By contrast, in the opinion below, the Federal Circuit applied a very similar "substantially complete" test to the invention claimed by petitioner herein. The Federal Circuit brushes aside Pfaff's contention that the on-sale bar should not apply because the sockets at issue were not tested prior to the critical date. Likewise, the Federal Circuit ignores Pfaffs testimony concerning the need for cycle testing to establish durability of the sockets, stating that "since durability was not a claimed requirement of the invention, the fatigue testing is irrelevant to the on-sale bar analysis." n2 Pfaff v. Wells Electronics, Inc., 124 F.3d 1429, 1439 (Fed. Cir. 1997). The court below concludes that Pfaff's reliance on Seal-Flex was inapposite, because while durability of the running track surface [*13] was "necessary to the efficacy of the invention", the durability of Pfaff's sockets were not a requirement to the substantial completion of Pfaff's invention. But nowhere in the Seal-Flex case is there any indication that "durability" was claimed as an element of the patent at issue.

n2 But testing is almost always an element of an actual reduction to practice. It is only in the rare case that a device is so extraordinarily simple that its mere construction is sufficient demonstration of its operability, rendering testing unnecessary. Sachs v. Watsworth, 48 F.2d 928 (C.C.P.A. 1931), quoting Mason v. Hepburn, 13 App. D.C. 86, 89 (1898).

In short, the inconsistencies in the approach taken by the panel in Seal-Flex, as opposed to the panel in the decision below, cannot be reconciled. Each of these inconsistencies, however, are the direct progeny of UMC's departure from the reduction to practice standard as applied to Section 102(b).

Notwithstanding the benefits of a consistent definition of "invention," the courts have recognized the difficulties of requiring completion of an embodiment of the invention to begin the running of the statutory bar. Further, the analysis under 35 U.S.C. § 102(g) does not require that the invention be complete and on hand in order for reduction to practice to occur. Instead, the courts have made a distinction between "actual reduction to practice," where the invention is complete and works for its intended purpose and "constructive reduction to practice," which occurs, as often described, when a patent application on the invention is filed. Constructive reduction to practice requires something other than just an application on file. In essence, for constructive reduction to practice to occur each element of the invention must be sufficiently described in a manner which enables one skilled in the art to make and use the invention. Consistent with this practice, and a modification of the standard proposed by the Petitioner, the constructive reduction to practice standard should be incorporated into the analysis under 35 U.S.C. § 102(b) in order to address the [*14] recognized the difficulties of requiring actual reduction to practice to begin the running of the statutory bar. Likewise, a constructive reduction to practice provides a bright-line.

Under the proposed standard, constructive reduction to practice occurs when the inventor has described in a tangible form each element of a claimed invention in a manner sufficient to enable one skilled in the art to which the invention pertains to make and use the invention. These terms are well understood by practitioners and the courts as codified in 35 U.S.C. § 112 (1994) in describing the requirements for the disclosure of the invention in a patent application. The requirement of a tangible description is apt for a bright-line standard. However, a tangible description should not be limited to a written disclosure of the invention. Such items as production schematics and computeraided (virtual reality) testing should be encompassed by this definition. Also, adoption of the constructive reduction to practice standard would not eliminate altogether the actual reduction to practice standard. Often in chemical compositions, conception of an invention does not occur until the same time as actual reduction to practice. Also, often no significant and enabling description exists until a patent application or the invention is filed. In these circumstances, there is no need for a determination as to when an invention was constructively reduced to practice. Adoption of a constructive reduction to practice standard would provide a much desired bright-line in the determination as to whether an inventor's conduct has begun the running of the statutory bar.

[*15] CONCLUSION

For the foregoing reasons, amicus requests that this Court adopt a modified "reduction to practice" standard including constructive reduction to practice as the bright-line standard in the determination of whether a patentees conduct began the running of an statutory bar to a patent grant.

Respectfully submitted,

FEDERAL CIRCUIT BAR ASSOCIATION

George E. Hutchinson * Executive Director, Federal Circuit Bar Association 1300 I Street, N.W., Suite 700 Washington, D.C. 20005 (202) 408-4000

* Counsel of Record

Robert J. Carlson Christensen, O'Connor, Johnson & Kindness 1420 Fifth Avenue, Suite 2800 Seattle, WA 98101

Denise W. DeFranco Choate, Hall & Stewart Exchange Place 53 State Street Boston, MA 02109

[*16] Rudolph P. Hofmann Schwegman, Lundberg, Woessner & Kluth 121 South Eighth Street, Suite 1600 Minneapolis, MN 55402

James F. McKeown Evenson, McKeown, Edwards & Lenahan 1200 G Street, N. W., Suite 700 Washington, D.C. 20005

Counsel for Amicus

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