searches and give the results to a patent attorney who provides an opinion as to whether the invention is patentable. Although the prelimi- nary search is not required by law, if it is performed, the inventor is required to provide all information obtaine d through that search to the Patent and Trademark Office if she ultimately files a patent application. The application must include specificatio ns and drawings of the proposed invention, an oath signed by the inventor, and the requisite fee. The Patent and Trademark Office keeps patent applications confidential until the patent is granted. The term letters patent refers to the document that contains the grant of a patent right. Specification A specification is a written description of the invention that includes the manner and process of creating, constructing, compounding, and using it. It should also state the practical limits of the operation of the invention. The descrip- tion must be in complete, clear, concise, and precise terms to make the limits of the patent known, to protect the inventor, and to encour- age the inventiveness of others by informing the public of what is still available for patent. Total disclosure of the invention is mandated to allow the public to freely use the invention once the patent has expired. No patent will be granted if the description purposely omits the complete truth about the invention in order to deceive the public. The specification concludes with the claims, which explicitly describe both the structure of the invention and what it does. By regulation and time-honored tradition, the patent claims are written in the form of a continuous run-on sentence. The claims give the Patent and Trademark Office and the courts the opportu- nity to determine whether the subject matter is patentable or whether it has been anticipated by a previous invention. A claim can be either rejected by the Patent and Trademark Office or deemed invalid if it is vague, indefinite, or incomplete. The claim should cover only the actual invention. It can also be rejected if it is so broad as to include what is old and known information in addition to what is new. Each claim must contain only one single and distinct invention, but more than one claim can be included in a single application. The inventor also must disclose in the specification what she considers to be the optimum way of practicing or using the invention. Drawings Drawings must be included in a patent applica- tion only when they are necessary for under- standing the subject for which a patent is sought. If drawings are omitted, the commis- sioner of patents can require that they be submitted within two months from the time that the inventor receives notice. Drawings that are submitted after that time cannot be used with the application, and a patent can be denied due to the inadequacy of the specification. The commissioner can require that the inventor provide a model of the invention. In addition, when the invention involves a com- position of matter, the applicant migh t have to furnish a specimen of it for inspection or experimentation. Oath and Fee The application for a patent is accompanied by an oath that the inventor believes himself or herself to be the first and original inventor. The patent laws of the United States do not discriminate on the basis of the citizenship of the inventor. An inventor from another country may apply for a patent on the same basis as a U.S. citizen. An application for an original patent must be accompanied by a filing fee payable to the Patent and Trademark Office. Fees vary depending upon the type of application and the size of the entity applying for the patent. Small entities pay lower fees. When a patent is issued, the patentee must pay an additional fee. These fees also vary based on the size of the entity to whom the patent is issued. Additional fees are charged for maintaining a patent, which likewise vary with the size of the entity involved in the maintenance of the patent. Patent and Trademark Office Proceedings Upon receipt of an application for a patent, the commissioner must examine it to determine whether the applicant is entitled to a patent. The Patent and Trademark Office is not restricted to the use of technical evidence in reviewing applications but can act upon anything that establishes the facts with reasonable certainty. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 438 PATENTS Patent 3,032,012 RETRACTABLE BALL POINT PEN Charles K. Lovejoy, Atlanta, Ga., assignor to Scripto, Inc., a corporation of Georgia Filed July 19, 1960, Ser. No. 43,921 2 Claims. (Cl. 120–42.03) This invention relates to writing instruments and more particularly to an improved ball point pen having a retractable writing unit wherein the extremity of the writing tip is inclined towards the central longitudinal axis of said pen barrel so as to afford a readily visible writing tip and achieve a near vertical writing angle formed between the axis of the inclined extremity of the writing tip and the writing surface when held by the writer in normal writing position. In the past ball point pens have utilized angled writing tips, however, such angled tips were not frontally disposed of the central longitudinal axis of the pen barrel, frontally disposed being defined as that side of the writing instrument which the writer sees during writing when the pen is held in normal writing position. The advantage that is achieved by the present invention is that a readily visible writing tip i s afforded which provides a near vertical writing angle formed between the axis of the inclined extremity of the writing tip and the writing surface when held by the writer in normal writing position. In addition, the present invention provides a writing instrument that is balanced, the reason for this being that the weight of the writing instrument is stably supported on the writing tip in an underslung fashion when in contact with the writing surface since the writing tip is above or frontally of the central longitudinal axis of the pen barrel which precludes any tendency to rotate in the writer's hand. These and other features of the present invention are described in further detail below in connection with the accompanying drawings, in which: FIG. 1 is a longitudinal cross section of the writing instrument according to the present invention showing the writing unit at projected position; FIG. 2 is an enlarged longitudinal cross s ection of the forward portion of the pen shown in FIG. 1; FIG. 3 is a transverse cross section taken along the line 3—3 in FIG. 2; and FIG. 4 is a longitudinal cross section of the extremity of the writing tip. Referring now in detail to the drawings, the writing instrument is generally designated by the reference numeral 10, and has a retractable ball point writing unit 12 housed within forward barrel portion 14 and rear barrel portion 16 which are normally held together in releasable threaded engagement. The writing unit 12 is longitudinally slidable in inclined relation within the central bore 18 that is formed within forward barrel portion 14 and rear barrel portion 16 and which terminates at its forward end in an aperture 20. The writing unit 12 is selectively projected or retracted by a projection and retraction mechanism 22 which can be of the type di sclosed and claimed in U.S. Patent No. 2.930.354 and which may incorporate the further structural features that are disclosed and claimed in copending application Serial No. 739,545, filed June 3, 1958, now Patent Number 3,007,444. The details of this mechanism are clearly disclosed in the above mentioned issued patent and copending application and hence will not be discussed in detail here, but merely referred to generally by the reference numeral 22 which is recognized to include a latch L and a plunger P. The latch L in response to a depression of plunger P is adapted to engage longitudinally spaced latch shoulders disposed within rear barrel portion 16 for selectively positioning the writing unit at its projected or retracted position. The writing unit is normally urged toward retracted position by spring 24 which is po sitioned between shoulders 26 and 28 formed in the forward barrel portion 14 and on the writing unit 12, respectively. Writing unit 12 has a forward metallic tube section 30 of reduced diameter which carries at its forward end writing tip 32. The writing tip 32 is of general cylindrical shape having a conical extremity 34 formed about an axis 36 that is inclined to the axis 38 of the cylindrical portion of the writing tip 32. The conical extremity 34 is also formed within the principal diameter that defines the cylindrical configuration of writing tip 32. A ball 40 is rotatably housed within the angled, conical extremity 34. The writing unit 12 is prevented from rotating within the central bore 18 by means of key 42, which is attached to the forward metal tub e portion 30, being slidably disposed in slot 44 which is formed in forward barrel portion 14. To illustrate the combined advantages of a readily visible writing tip having a near vertical writing angle, shown by reference numeral 46 and it can be readily seen in FIGS. 1 and 2 that the inclined writing extremity 34 is frontally disposed of the longitudinal axis 46 of the writing instrument. By this arrangement the writing extremity is clearly visible to the writer. The writing angle is shown as the angle formed between the axis 36 of the angled extremity 34 of writing tip 32 and the writing surface 48. By referring to FIG. 2 it is readily seen that this angle approaches 90 degree when held in normal writing position. The present invention has been described in detail above for purposes of illustrating only and is not intended to be limited by this description or otherwise except as defined in the appended claims. I claim: 1. In a writing instrument having a barrel formed about a central longitudinal axis with a main central bore and an aperture formed in its forward end, a writing unit including a ball point writing tip at its forward end slidably disposed within said central bore for shifting between projected and retracted positions with respect to said forward barrel end, means normally biasing said writing unit toward retracted position and means for selectively positioning said writing unit at projected and retracted positions, the improvement of said ball point writing tip having a conical portion the axis of which is inclined toward the central longitudinal axis of said barrel, said conical portion terminating in a ball retaining lip which lies in a plane facing the longitudinal axis of said barrel and adapted for disposition through said forward barrel aperture so that said conical portion of the writing tip when projected is frontally disposed of and inclined toward said central longitudinal axis of said barrel to afford a visible writing tip having a near vertical writing angle when brought in contact with a writing surface and to provide a balanced writing instrument that precludes any tendency to rotate about said central longitudinal axis of said pen barrel when held by the writer in normal writing position. 2. In a writing instrument the improvement as defined in claim 1 and further characterized in that said writing unit is keyed against rotation within said barrel. References Cited in the file of this patent UNITED STATES PATENTS 2,449,939 Heyberger Sept. 21, 1948 2,863,421 Rizzo Dec. 9, 1958 3,000,352 Grube et al Sept. 19, 1961 FOREIGN PATENTS 428,021 Italy Feb. 12, 1947 1,167,185 France July 7, 1958 An example of a patent. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PATENTS 439 A patent application can be rejected for substantial and reasonable grounds, such as when the alleged invention lacks usefulness or when the invention has been publicly used or sold previously. If the patent is rejected, the commis- sioner must notify the applicant of the rejection and the grounds for the rejection. An applicant can request a reexamination of the application and submit evidence to rebut the reasons for rejection. Failure to request a review is considered a waiver of the right to challenge the rejection. A pending application may be amended until the Patent and Trademark Office ultimately decides the matter, either by issuing the patent or rejecting the patent application. New and enlarged claims can be added by amendment only when they are fairly within the scope of the original claim. An amendment that involves a material departure from the invention described in the original specification or enlarges the scope of the original application is invalid. When made within a reasonable time, amendments relate back to the original date of the application and are treated as if they were included in the original application. This is significant because time determines who will be entitled to the patent when two inventors claim essentially the same invention. Loss or Denial of a Patent An individual who has invented or discovered a process or object is entitled to a patent if the item or process falls within the specific categories of patentable matter and possesses the necessary attributes of invention, novelty, and utility. Anticipation Apatentwillbedeniedinthe event that anticipation occurs, which means that the complete invention was disclosed before the applicant’s invention or discovery. This situation might arise when substantially similar elements that produce, or are capable of producing, the same results are found in previously invented machines that are known and commercially used. However, if the two similar inventions accom- plish substantially different results or perform totally different functions, they are not deemed to be anticipated, and the second invention will be patentable even if it is essentially identical structurally to the first invention. For a prior patent to anticipate a later invention, it must disclose the complete and operative invention in such full, clear, and exact terms as to enable a skilled individual involved in the art to practice the invention without the exercise of his or her own inventive skill. A process or instrument used for one purpose might anticipate an invention that uses essen- tially the same method for a new use if the latter is so comparable to the original invention that it would be apparent to a person experienced in the field. An invention is not anticipated if it has been produced previously due to an accident but is incapable of being repeated because the necessary knowledge to do so is lacking. If the results could be reproduced, however, the invention is consid ered anticipated. Previous experimental efforts that are aban- doned before the invention achieves actual results do not anticipate the invention. The invention is anticipated, however, if the experi- ment proves successful. Statutory Bar Section 102(b) o f 35 U .S.C.A. provides a statutory bar to some otherwise meritorious inventions. U nder this rule, an inventor is not issued a patent if the invention was described in a book, catalog, magazine article, thesis, or trade publication in the United States or any other country before it was invented or more than a year before the inventor filed the patent application. This statutory bar applies regardless of who made the invention discussed in the prior publica- tion. Thus, if an inventor publishes a des crip- tion of an invention or places the invention for sale or for public use, a statutory bar can result. Once an invention is placed for sale in the United States, the inventor has just one year in which to file a patent application or the right to patent that invention is forever lost. The clock begins when the invention is placed for sale, even if it is never actually sold. This rule is intended to guarantee that an inventor cannot expand the period of patent protection for the commercial exploitation of her monopoly. Abandonment and Forfeiture An inventor can lose the right to obtain a patent through abandonment. An invention is regarded as abandoned when it is subject to free and unrestricted public use. A recognized exception to this genera l rule, called the experimental use exception, occurs when an invention must be placed in the public use to determine its operability. However this exception is very narrow, and the inventor must be careful to document the invention to support a later claim of experimental use. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 440 PATENTS An inventor forfeits the right to a patent when he delays making a claim or hides the invention for an extensive period of time because such conduct unduly postpones the time that the public would be entitled to the subsequent free use of the invention. Delay in applying for a patent does not constitute abandonment if the inventor can demonstrate that he never intended to abandon the invention. Priority When two or more inventors discover or invent the same thing, patent priority can deny a patent to one of the inventors. Paten ts are generally issued to the first inventor, as determined by certain guidelines. The Patent and Trademark Office commences an interfer- ence proceeding to determine the priority of invention between two or more inventors who claim substantially the same patentable inven- tion and who each appear to be entitled to the patent but for the other’s application. Such a proceeding examines the dates of conception and reduction to practice and also considers the diligence exercised by the individual who conceived of the invention first but did not reduce it to practice until after the other inventor had done so. The date of conception is the date when the idea, encompassing all the basic and necessary components of the inven- tion, becomes so clearly defined in the mind of the inventor as to be capable of physical expression. Reduction to practice occurs when the way in which the invention works is readily demonstrable. An inventor who is the first to conceive of an invention and reduce it to practice is entitled to a patent. When an inventor who first conceives of an invention exercises reasonable diligence in reducing it to practice, she will receive a patent, even if the inventor who was second to conceive of the idea was faster in reducing it to practice. Another general rule is that an individual who actually reduces an invention to practice has priority over one who constructively reduces it to practice. Actual reduction takes place when the invention is put into practical form, whereas constructive reduction occurs when a patent application is filed with the Patent and Trade- mark Office. Former U.S. patent law only allowed inven- tive activity that actually took place within the borders of the country to establish a date of invention. GATT changed this restriction to allow foreign inventors to prove inventive activity that took place in another country to show a date of invention. Because the United States has a “first to invent” patent system, whereas most other countries have a “first to file” system, the United States had effectively discriminated against for- eign inventors because it gave patents to the first inventor to actually make the invention in the United States. GATT addressed this issue that for many years was a disadvantage for U.S. trading partners. Appeals Applicants for a patent, or for the reissue of a patent, whose claims have twice been rejected can bring an appeal from the final decision of the primary examiner to the Patent Office Board of Appeals and Interferences. An applicant who is dissatisfied with the decision of the board of appeals can appeal to the U.S. Court of Appeals for the Federal Circuit or start a CIVIL ACTION against the commissioner in U.S. District Court for the District of Columbia within a specified period of time after the board issues its decision. The applicant is not permitted, however, to institute both a civil lawsuit and an appeal to the U.S. Court of Appeals for the Federal Circuit. Reissue and Disclaimer A reissued patent is the grant of a n ew patent that modifie s the original invention by the addition of new elements. A reissued patent is essentially an ame ndment o f the original patent effected to rectify s ome defect or insufficiency in it. A disclaimer is the voluntary abandonment of some portio n of a patent claim that would render it invalid for lack of novelty. It limits the claim to what is new and thereby saves the patentability of the item by circumventing the invalidity that would otherwise defeat the entire claim. An inventor who knows that a patent contains invalid claims should immediately file a disclaimer because the failure to do so could result in the rejection of the patent. Assignment and Lease An assignment is a transfer either of the entire patent, encompassing the exclusive right to make, use, and sell the invention, or a specified part thereof, in the United States. The assign- ment must be in writing and should be recorded in the Patent and Trademark Office. In the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PATENTS 441 event that a patent is assigned but the assign- ment is not recorded, a later purchaser of the patent can use the purchased pat ent as if it had never been assigned. An assignment is different from a license because a license merely provides the licensee with a temporary right to use the patent as agreed. A license need not be in writing. Whether a transfer is an assignment or a license is determined by reference to the contract between the parties. A patent license is personal to the licensee and cannot be transferred unless specifically indicated in the agreement. The licensor, the individual who issued the license to another, ordinarily requires the payment of a royalty for the use of the patent. Marking Patented Items A patentee or any authorized party who makes or sells any patented item must provide notice to the public that the article is patented by placing the word patent and the number given to the patent on the article. If the nature of the article prohibits such a designation, a label that contains the same information should be enclosed in, or marked on, its package. This marking require- ment is not applicable to a patent for a process. Inventors can mark their inventions with the words patent pending if they have a patent application on file and pending with the Patent and Trademark Office at the time the products are marked. Federal law imposes a penalty for various forms of false marking, including marking an unpatented article with the word patent, or any term that implies that the article is patented, for the purpose of deceiving the public. If a patent holder fails to mark the patented product as required, he or she may not recover damages for any patent INFRINGEMENT that may take place as a result. Infringement Infringement is the unauthorized making, using, or selling for practical use or for profit an invention covered by a patent. Effective 1996, GATT also made the offer to sell a patented invention without the permission of the paten- tee a direct infringement violation. Although no infringement can occur before a patent is issued, infringement can occur even if the infringer does not have any actual knowledge of the existence of a patent. A direct infringer is one who makes, uses, or sells the patented invention without permission from the patentee. An indirect infringer is one who actively encourages another to make, use, or sell a patented invention without permission. A contributo ry infringer is one who knowingly sells or supplies a part or component of the patented invention to another, unless the com- ponent is a staple article of commerce and is suitable for a substantial noninfringing use. The definition of an infringement, provided in 35 U.S.C.A. § 271, was greatly expanded between 1980 and the early 2000s. For example, it is an infringement to apply for federal FOOD AND DRUG ADMINISTRATION approval of a patented drug if the purpose is to obtain approval to manufacture, use, or sell the drug before its patent expires. It is also an infringement to provide a substantial portion of the components of a patented invention to someone outside the United States so that the components can be assembled outside the reaches of U.S. patent law. Similarly, it is an infringement to import into the United States a product made by a process covered by a U.S. patent although it was produced outside the United States. Remedies The Patent Act provides for several remedies in the event of an infringement, including injunctive relief, compensable damages, TREBLE DAMAGES when appropriate to punish the in- fringer, payment of attorneys’ fees in cases involving knowing infringement, and payment of the costs incurred in bringing the infringe- ment claim in court. The owner of a patent has a RIGHT OF ACTION for the unlawful invas ion of patent rights by an infringement that has arisen within six years from the date when the lawsuit is initiated. Injunction Courts frequently grant injunc- tions to protect property rights in patents. An INJUNCTION is a court decree that orders an infringer to stop illegally making, using, or selling the patented article. An injunction is only granted when an award of monetary damages will not adequately remedy the situa- tion—for example, when an infringer plans to continue the unlawful acts. If an individual disobeys an injunction and continues to make use of an invention without permission, he will be guilty of CONTEMPT and subject to a fine or imprisonment or both. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 442 PATENTS Damages In an action for infringement of a patent, compensation for prior infringements can be awarded; however, compensation will be denied for use of the invention before the date the patent was issued. Where there is an infringement, the court will award the patentee actual damages adequate to compensate for the loss in an amount that is equal to a reasonable royalty for the infringing use, together with interest or costs set by the court. If the jury in a trial does not determine the amount of damages, the court will. In either case, the court, under the authority of statute, can increase the damages awarded by the jury up to three times the amount determined, called treble damages. Treble damages are punitive and awarded only in certain instances, such as when the infringer inten- tionally, in bad faith, infringed the patent. The question of whether amendments to a patent can bar an infringement claim was ruled on by the Supreme Court in the 2002 case of Festo Corp . v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 122 S. Ct. 1831, 152 L. Ed. 2d 944 (2002). In that case, the Court unanimously ruled that a patent amendment is not an absolute bar to a claim of infringement under the doctrine of equivalents. Justice ANTHONY KENNEDY, writing for the Court, stated the patentee has the burden of proving that the amendment did not surrender the particular equivalent in question. Settlement Because patent LITIGATION can be costly and produce unpredictable results, more than 85 percent of lawsuits involving a patent dispute settle out of c ourt. This number is higher for lawsuits prosecuted by so-called patent trolls. Patent trolls are businesses that buy up patent rights with knowledge that other firms are currently selling a product that infringes on the patent but are unaware of the i nfringement. The PATENT TR OLL then threatens to enforce its patent rights (and obtain an injunction) against the allegedly infringing party, without ever having to invest in a product that makes use of the p atent. By contrast, the business currently using the patent, and the target of the patent troll’s infringement suit, has made significant invest- ment in its product and built up a profitable customer base, facts that the patent troll can use to leverage in settlement talks. In a famous case brought by NTP, Inc. (“NTP”) against Research In Motion Ltd. (“RIM”), NTP threatened to enjoin the use of technology underlying the popular BlackBerry product to secure an OUT-OF-COURT SETTLEMENT worth more than $600 million, even though NTP would not have been able to offer BlackBerry customers a rival product of its own had it won a favorable judgment in court. RIM, who had reported a customer base of approxi- mately one million BlackBerry users, felt it had no choice but to settle or discontinue the product, especially after receiving a number of unfavorable rulings from the justice system early in the litigation. Patent Trolls have been the subject of much criticism in both the legal and technology worlds, as they seemingly do l ittle to promote scientific progress, the underlying goal of patent law. But as of 2009, Congress had taken no action to respond to this criticism. FURTHER READINGS Adelman, Martin J. 2007. Patent Law in a Nutshell. St. Paul, Minn: Thomson West. Mann, Richard A., and Barry S. Roberts. 2004. Essentials of Business Law and the Legal Environment. 8th ed. Columbus, Oh.: Thomson/South-Western West. Walterscheid, Edward C. 1996. “The Early Evolution of the U.S. Patent Law: Antecedents.” Journal of the Patent and Trademark Office Society 78 (October). Wilson, Lee. 1990. Make It Legal: Copyright, Trademark, and Libel Law: Privacy and Publicity. New York: Allworth. CROSS REFERENCES Intellectual Property; License; Property Law; Royalty. PATERNITY The state or condition of a father; the relationship of a father. English and U.S. COMMON LAW have recog- nized the importance of establishing the pater- nity of children. In the United States, a child born outside a legal marriage relationship will lose CHILD SUPPORT and inheritance rights if the fatherhood of the child is not legally established. The father may voluntarily acknowledge paternity in a legal document filed with a court or may agree to have his name listed as the father on the child’s birth certificate. If the man disputes fatherhood, the mother or the state government may initiate a legal proceeding, known as a “paternity action,” to adjudicate fatherhood. The common law also established the “marital paternity presumption,” which holds that a child born during a marriage is the offspring of the husband. Therefore, a child GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PATERNITY 443 born as a result of the wife’s adulterous affair is recognized as a legitimate child of the marriage. This rule recognized that illegitimacy brought social stigma as well as severe economic penalties to a child, including the inability to inherit from the husband of the child’s mother. By establishing a presumption of paternity, and therefore legitimacy, the rule promoted family stability and integrity. This rule was developed at a time when no medical tests existed to prove paternity. In addition, a husband could not testify that he had no access to his wife at the time of conception. A husband could rebut the marital presumption only by proving his impotence or his absence from the country. By the late nineteenth century, U.S. courts began to allow the defense of impossibility to rebut the marital presumption. The question of paternity became a fact that could be rebutted by clear and convincing evidence that procre- ation by the husband was impossible. Modern science has made the ADJUDICATION of paternity issues easier. Today, blood and genetic testing can accurately determine pater- nity. Human leukocyte antigen tissue typing can provide up to a 98 percent probability that a certain man is the father of a particular child. The use of DNA testing provides near-positive paternity identification. The evolving state of the law as it relates to paternity can been seen in the Uniform Parentage Act (UPA). The UPA was first established in 1973 by the COMMISSIONERS ON UNIFORM LAWS . The goal of the UPA was to establish a consistent rule on adjudicating paternity disputes. The 1973 version of the UPA continued to use the presumption of marital paternity, presuming a mother’s hus- band to be the natural father of a child if the child is born during the marriage or within 300 days after the marriage was terminated. The 1973 UPA stated, however, that a presumption of paternity could be rebutted by clear and convincing evidence. The UPA was revised in 2000. While the 2000 UPA retained all of the original pre- sumptions related to marriage, it eliminated the clear and convincing evidence standard for rebutting an assumption of paternity. Instead it stated that the presumption may be rebutted “only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.” The UPA was again revised in 2002. The presumption of marital paternity was contin- ued, applying to a man who was married to the mother at conception. The presumption of paternity was also extended beyond marriage, applying to a man who lived with the child for the first two years of life and treated the child as his own. The presumption continues to be rebuttable by admissible results of genetic testing excluding the man as the father of the child or identifying another man as the father of the child. Though every state has some form of the UPA, none has adopted the 2002 version verbatim. Many states that have adopted the UPA have created a presumption of paternity based solely on genetic testing. Some courts have questioned the need for the marital presumption at all because of the certainty produced by testing. In addition to the changing provisions of the UPA, genetic testing has also allowed most states to expand the categories of persons who can challenge the martial presumption and increase the chances that such challenges will be successful. With that, the marital presump- tion of paternity has become eroded. Though a majority of states now set a scientific standard for a conclusive presumption of non-paternity, others establish a scientific standard for a conclusive presumption of paternity. But despite the new emphasis on genetic testing, the newly revised UPA and m ost state laws and courts put some emphasis on the best interests of the child. In states such as Arizona, Wisconsin, Kansas, Maryland, Montana, and Minnesota, courts have said that the best interest of the child must be taken into account when determining paternity. In some cases, courts have upheld the right to refuse genetic tests if it is determined they are not in the best interest of the c hild; others have stated the best interests of the child must be taken into account after the genetic testing determines paternity. The use of sperm donors and surrogate mothers has led to legal issues surrounding paternity. In Ferguson v. McKiernan,, 855 A.2d 121 (2007), the Supreme Court of Pennsylvania upheld an ORAL CONTRACT exempting a sperm donor from child support obligations, where GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 444 PATERNITY the donor was a friend and former sexual partner of the mother. The Court of Appeals of Maryland, in In re Roberto d.B.,, 399 Md. 267, 923 A.2d 115 (2007),held that a surrogate mother is not required under state law to be listed on a child’s birth certificate. FURTHER READINGS Glennon, Theresa. 2000. “Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity.” West Virginia Law Review 102. McDuff, Lawrence J. 1994. “The ‘Inconceivable’ Case of Tierce v. Ellis.” Alabama Law Review 46. Michaelis, Ron C., Flanders, Robert G., and Wulff, Paula. 2008. A Litigator’s Guide to DNA: From Laboratory to the Courtroom. Academic Press. National Conference of Commissioners on Uniform State Laws. 2002. “Uniform Parentage Act.” Uniform Laws Annotated St. Paul, Minn.: West Group CROSS REFERENCES DNA Evidence; Family Law; Paternity Suit. PATERNITY SUIT A civil action brought against an unwed father by an unmarried mother to obtain support for an illegitimate child and for payment of bills incident to the pregnancy and the birth. A paternity suit, also known as an AFFILIATION PROCEEDING , is a criminal proceeding in certain states. Generally the u nwed mother initiates a paternitysuit;in some jurisdictions, however, ifthe mother is a minor, proceedings must be initiated by a parent or guardian acting on her behalf. As a procedural matter, in an action to establish paternity, a statutory presumption of paternity arises from blood and DNA tests showing the probability of paternity to be 99% or higher. The putative father then bears the burden of coming forward with evidence to rebut the presumption. CROSS REFERENCES Child Support; Illegitimacy; Parent and Child. The Impossible Heir I B n contemporary law the legal determination of paternity generally rests on the results of blood and genetic testing. However, there are times when it can be proved that it was impossible for a husband to be the father of his wife’s child because the husband was absent during the period when conception occurred. In an unusual reversal of modern law on paternity, the Alabama Supreme Court, in Tierce v. Ellis, 624 So. 2d 553 (1993), found that Dennis Tierce was the legitimate son of William Tierce, even though William was serving overseas in the armed forces during World War II when Dennis was conceived. William Tierce r eturned from the war to Alabama in D ecember 1945 to discover that his wife Irene was six months pregnant. He immediately filed for divorce on the ground o f adultery. The divorce was g ranted in February 1946. On April 4, 1946, Dennis Tierce was born. William Tierce w as erroneously listed as the father on the birth certificate, but Tierce never knew of this mistake. He remarried and had five children, including his daughter, Sheila Ellis. William Tierce died i n 1972. When the executors of his estate filed a list of heirs in 1989, they listed Dennis as William’s son. Sheila E llis filed suit, challenging the paternity of Dennis and his status as an heir. The trial court ruled that it was impossible for Dennis to be the biological son of William. The Alabama Supreme Court reversed, basing its decision on two grounds. First, under the Alabama Uniform Parentage Act (Ala . Code §§ 26- 17-1 et seq. [1992 and Supp. 1994]), a husband is presumed to be the father of a child born within three hundred da ys of a divorce. Dennis was born sixty days after his parents’ divorce. Second, the court invoked the common law rule of repose, which requires a prompt disposition of a legal dispute. The court concl uded that because William Tierce did n ot seek a paternity judgment during his divorce proceedings in 1946, his daughter could not now attempt t o rebut the marital paternity presumption. Therefore, Dennis T ierce, the impos- sible heir, could claim a share of the estate o f a person he never knew and to whom he was not related. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PATERNITY SUIT 445 v PATERSON, WILLIAM William Paterson was a distinguished public servant during the early years of the Republic of the United States, serving as governor of New Jersey, a Framer of the U.S. Constitution, a U.S. senator, and associate justice of the U.S. Supreme Court. In recognition of his service to New Jersey, the city of Paterson was named for him. Paterson was born on December 24, 1745, in County Antrim, Ireland. He emigrated with his family to New Jersey in 1747 and graduated from the College of New Jersey (now Princeton University) in 1763. He was admitted to the New Jersey bar in 1768, establishing a law practice in New Bromley, New Jersey. He entered government in 1775, serving in the New Jersey Provincial Congress. He became attorney general of New Jersey in 1776, holding the position for seven years. During this period he briefly served in the New Jersey Senate. He also participated in the New Jersey State Constitutional Convention in 1776. Paterson played a key role in the U.S. Constitutional Convention, which was held in Philadelphia in 1787. As a delegate from New Jersey, Paterson sought to protect his and other small states from demands by larger states that representation be based on population. Pater- son offered an alternative to the large-state proposition, or Virginia Plan. His New Jersey Plan went to the other extreme. He proposed that each state have one vote in Congress. Out of this conflict came the compromise that created two houses of Cong ress, with the House of Representatives based on population and the Senate on equal representation (two votes per state). The compromise also led to the creation of the Supreme Court in Article III of the U.S. Constitution. Paterson, who signed the Constitution, was a strong supporter of the document and campaigned for its adoption in New Jersey. He was e lected to the Senate in 1789 and was one of the authors of the JUDICIARY ACT OF 1789, which created the federal legal structure of Supreme Court, circuit court, and district court. The act created the office of attorney general and gave the Supreme Court the appellate jurisdiction to review state court decisions that involved the Constitution, federal laws, and treaties. Paterson resigned in 1790 to run for governor of New Jersey. Easily elected, he left the governorship in 1793 when President GEORGE WASHINGTON appointed him an associate justice of William Paterson 1745–1806 ▼▼ ▼▼ 17501750 18001800 17751775 ❖ ❖ ◆◆◆◆ ◆ ◆ ◆ ◆ 1806 Died, Albany, N.Y. 1787 Offered the New Jersey Plan at the U.S. Constitutional Convention in Philadelphia 1776 Became attorney general of New Jersey; participated in the New Jersey State Constitutional Convention 1768 Admitted to New Jersey bar 1763 Graduated from the College of New Jersey (now Princeton) 1747 Paterson family immigrated to New Jersey 1745 Born, County Antrim, Ireland 1775–83 American Revolution ◆ 1789 Elected to U.S. Senate; co-authored the Judiciary Act of 1789, which created the federal court system 1790 Elected governor of New Jersey 1793 Appointed associate justice of the U.S. Supreme Court 1794 Conducted the treason trials resulting from the Whiskey Rebellion William Paterson. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 446 PATERSON, WILLIAM the U.S. Supreme Court. His tenure on the Court revealed him to be a strong supporter of the federal government and an independent judi- ciary. His role as a Framer lent credibility to his conclusions as to what was the “original intent” of the drafters of the Constitution. As a circuit judge (in that period Supreme Court justices also rode circuit), he conducted the TREASON trials of the participants in the WHISKEY REBELLION, a revolt in 1794 against the excise tax on whiskey imposed by Secretary of the Treasury ALEXANDER HAMILTON. He later pre- sided over the trials of prominent Democratic- Republicans who were charged with SEDITION for criticizing President JOHN ADAMS. Paterson died on September 9, 1806, in Albany, New York. FURTHER READINGS Abraham, Henry J. 1992. Justices and Presidents: A Political History of Appointments to the Supreme Court. New York: Oxford Univ. Press. Cushman, Clare. 1996. The Supreme Court Justices: Illus- trated Biographies 1789–1995. 2d ed. Washington, D.C.: Congressional Quarterly. O’Connor, John E. 1979. William Paterson, Lawyer and Statesman, 1745–1806. New Brunswick, NJ: Rutgers Univ. Press. CROSS REFERENCES Constitution of the United States; “The New Jersey, or Paterson, Plan” (Appendi x, Primary Document). PATIENTS’ RIGHTS The legal interests of persons who submit to medical treatment. For many years, common medical practice meant that physicians made decisions for their patients. This paternalistic view has gradually been supplanted by one promoting patient autonomy, whereby patients and doctors share the decision-making responsibility. Consequently doctor-patient relationships are now very differ- ent from the way they were just a few decades ago. However, conflicts still abound as the medical community and those it serves struggle to define their respective roles. Consent Consent, particularly INFORMED CONSENT, is the cornerstone of patients’ rights. Consent is based on the inviolability of one’s person. It means that doctors do not have the right to touch or treat a patient without that patient’s approval because the patient is the one who must live with the consequences and any discomfort caused by treatment. A doctor can be held liable for committing a BATTERY if the doctor touches the patient without first obtaining the patient’s consen t. The shift in doctor-patient relationships seems inevitable in hindsight. In one early consent case, a doctor told a woman he would only be repairing some cervical and rectal tears; instead, he performed a hysterectomy. In another case, a patient permitted her doctors to examine her under anesthesia but insisted that they not operate; the doctors removed a fibroid tumor during the procedure. In yet another case, a doctor assured a man that a proposed operation was simple and essentially without risk; the patient’s left hand was paralyzed as a resu lt of the surgery. Consent must be voluntary, competent, and informed. Voluntary means that, when the patient gives consent, he or she is free from extreme duress and is not intoxicated or under the influence of medication and that the doctor has not coerced the patient into giving consent. The law presumes that an adult is compe- tent, but competency may be an issue in numerous instances. Competency is typically only challenged when a patient disagrees with a doctor’s recomme nded treatment or refuses treatment altogether. If an individual under- stands the information presented regarding treatment, he or she is competent to consent to or refuse treatment. Consent can be given orally, in writing, or by one’s actions. For example, a person has consented to a vaccination if she stands in line with others who are receiving vaccinations, observes the procedure, and then presents her arm to a healthcare provider. Consent is inferred in cases of emergency or unanticipated circum- stances. For example, if unforeseen serious or life-threatening circumstances develop during surgery for which consent has been given, consent is inferred to allow doctors to take immediate further action to prevent serious injury or death. Consent is also inferred when an adult or child is found unconscious, or when an emergency otherwise necessitates immediate treatment to prevent serious harm or death. Consent is not valid if the patient does not understand its meaning or has been misled. Children typically may not give consent; instead, a parent or guardian must consent to medical GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PATIENTS’ RIGHTS 447 . 1,1 67, 185 France July 7, 1958 An example of a patent. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, . President GEORGE WASHINGTON appointed him an associate justice of William Paterson 174 5–1806 ▼▼ ▼▼ 175 0 175 0 18001800 177 5 177 5 ❖ ❖ ◆◆◆◆ ◆ ◆ ◆ ◆ 1806 Died, Albany, N.Y. 178 7 Offered the New Jersey Plan at the U.S. Constitutional Convention. (now Princeton) 174 7 Paterson family immigrated to New Jersey 174 5 Born, County Antrim, Ireland 177 5–83 American Revolution ◆ 178 9 Elected to U.S. Senate; co-authored the Judiciary Act of 178 9, which