In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2857

COUNTY MATERIALS CORPORATION,

Plaintiff-Appellant,

v.

ALLAN BLOCK CORPORATION,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05-C-675-S—John C. Shabaz, Judge.

____________

ARGUED MARCH 27, 2007—DECIDED SEPTEMBER 18, 2007

____________

Before MANION, KANNE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. This case is one of those nonpatent patent cases that, as we explain more fully below,

falls within the jurisdiction of the regional courts of

appeals rather than the Federal Circuit. See 28 U.S.C.

§§ 1295(a)(1), 1338; Holmes Group, Inc. v. Vornado Air

Circulation Sys., Inc., 535 U.S. 826, 829-30 (2002) (applying well-pleaded-complaint rule to § 1338). Two companies,

County Materials Corporation and Allan Block Corporation, entered into a production agreement (“the Agreement”) giving exclusive rights to County Materials to

manufacture Allan Block’s patented concrete block; the

issue is whether County Line was free to sell an allegedly

non-infringing product, despite the presence of a covenant
2 No. 06-2857

not to compete in the Agreement in which County Line

promised not to sell competing products for 18 months

if it stopped making Allan Block’s product. Following

the termination of the Agreement, County Line decided

not to wait for the full 18 months before jumping back

into the market with a competing product. Allan Block

threatened to sue, but County Line beat it to the courthouse with this suit for a declaratory judgment. County

Line wanted the district court to declare that the covenant

not to compete was unenforceable because it violated

federal patent policy, essentially raising an anticipatory

patent misuse defense to its planned breach of the Agreement. The district court granted summary judgment to

Allan Block, finding no violation of federal patent policy

or Minnesota law. We agree with the district court’s conclusions and affirm.

I

County Materials is in the business of manufacturing

concrete blocks. Allan Block develops, markets, and

licenses technology for the manufacturing of concrete

blocks; it does not manufacture blocks itself. In April 1993,

County Materials’s predecessor in interest, County Concrete Corporation, entered into a production agreement

with Allan Block. The Agreement granted to County

Materials the exclusive right to manufacture Allan Block’s

patented block products in northwest Wisconsin. County

also was granted the right to sell these products under

the Allan Block trademark. Finally, Allan Block agreed

to provide County Materials with significant technical,

marketing, and strategic support while the Agreement

was in effect.

The Agreement included a limited covenant not to

compete, which allowed County Materials to make and

sell two specific competing block products, without any
No. 06-2857 3

time restrictions. The non-compete provision also required that for the 18 months following the termination

of the Agreement, County Materials could not “directly or

indirectly engage in the manufacture and/or sale of any

other [competing] . . . block.”

In 2005, Allan Block notified County Materials that it

would be terminating the Agreement. Shortly thereafter,

County Materials completed its own design for a new

concrete block that would compete directly with the

Allan Block products that it had been manufacturing

and selling in northwest Wisconsin. As County Materials

took steps to begin producing this new block, Allan Block

threatened that it would sue to enforce the non-compete

provision from the terminated Agreement. County Materials decided to move first, and so it filed this suit alleging

that the inclusion of the non-compete provision in the

Agreement constituted patent misuse, which made the

Agreement void.

II

The district court’s jurisdiction over this case was

based on diversity. 28 U.S.C. § 1332(a)(1). County Materials is a Wisconsin corporation with its principal place of

business in Wisconsin; Allan Block is a Minnesota corporation with its principal place of business in Minnesota, and

County Materials alleges damages exceeding $75,000.

Even though the requirements of § 1332 are therefore

satisfied, there is a second potential jurisdictional hurdle

in our path. Allan Block, repeating an argument made to

this court in advance of oral argument, contends that

appellate jurisdiction over this appeal lies with the Federal Circuit and not this court. The Supreme Court has

held that the Federal Circuit has appellate jurisdiction
4 No. 06-2857

only [in] those cases in which a well-pleaded complaint establishes either that federal patent law

creates the cause of action or that the plaintiff’s right

to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent

law is a necessary element of one of the well-pleaded

claims.

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

809 (1988); see also Holmes Group, supra.

Looking as we must at the well-pleaded complaint, it is

apparent that federal patent law does not create the cause

of action here. It is instead a claim about the enforceability

of a contract or license agreement. Resolution of this

appeal does not “necessarily require[ ] resolution of substantial questions of federal patent law,” as Allan Block

claims. We faced almost the same arguments in Scheiber

v. Dolby Laboratories, Inc., 293 F.3d 1014 (7th Cir. 2002),

where we concluded:

Federal jurisdiction over the suit is based on diversity

of citizenship, because a suit to enforce a patent

licensing agreement does not arise under federal

patent law. E.g., Jim Arnold Corp. v. Hydrotech

Sys., Inc., 109 F.3d 1567, 1575 (Fed. Cir. 1997). The

presence of a federal defense (here, patent misuse) is

irrelevant to jurisdiction. Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988).

293 F.3d at 1016. The same is true for a declaratory

judgment action, where the roles of plaintiff and defendant

are reversed. As we have held before, “[i]n declaratory

judgment cases, the well-pleaded complaint rule dictates

that jurisdiction is determined by whether federal jurisdiction would exist over the presumed suit by the declaratory judgment defendant.” Ne. Ill. Reg’l Commuter R.R.

Corp. v. Hoey Farine & Downes, 212 F.3d 1010, 1014 (7th

Cir. 2000), quoting GNB Battery Techs., Inc. v. Gould, Inc.,
No. 06-2857 5

65 F.3d 615, 619 (7th Cir. 1995). The Fifth Circuit case

cited by Allan Block is not to the contrary, because that

case involved the question whether an attempt to raise

claims under a patent licensing agreement that had

arisen out of the settlement of a patent infringement

suit was barred by res judicata. NaTec, Inc. v. DeTer Co.,

28 F.3d 28 (5th Cir. 1994). Declining to reach the merits,

the Fifth Circuit held that “[t]he right of the patent

holder . . . to enforce the settlement agreements and

obtain royalties for use of the patent after it expires is

a substantial question of federal patent law.” Id. at 28.

This meant that the suit arose under 28 U.S.C. § 1338, and

that appellate jurisdiction necessarily lay in the Federal Circuit, under 28 U.S.C. § 1295. In our case, the

district court’s jurisdiction over the present case was

not based even in part on § 1338. Appellate jurisdiction therefore lies in this court, see 28 U.S.C. §§ 41, 1291,

and we are free to proceed to the merits.

III

This court reviews a district court’s decision to grant

summary judgment de novo. Balderston v. Fairbanks

Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th

Cir. 2003). The parties appear to agree that the production agreement is a patent license, which is the way

that we too would characterize it. County Materials

essentially claims that the inclusion of the covenant not

to compete in the patent license here was per se unlawful patent misuse and the improper result of patent

leverage. While at one time this argument might have

had traction, in certain circumstances, it is at least

disfavored today, if not entirely rejected. Today, the

concept of patent misuse is cabined first by statute, 35

U.S.C. § 271(d), which essentially eliminates from the

field of “patent misuse” claims based on tying and refusals
6 No. 06-2857

to deal, unless the patent owner has market power, and

second by case law. As the Federal Circuit explained in

Virginia Panel Corp. v. MAC Panel Co., 133 F.3d 860

(Fed. Cir. 1997), there are certain practices that court

identified as “constituting per se patent misuse,” including

“arrangements in which a patentee effectively extends

the term of its patent by requiring post-expiration royalties.” Id. at 869; see also Brulotte v. Thys Co., 379 U.S. 29,

32 (1964) (holding that “a patentee’s use of a royalty

agreement that projects beyond the expiration date of

the patent is unlawful per se”). The practices identified

in § 271(d), in contrast, may not be branded “misuse.”

Va. Panel Corp., 133 F.3d at 869.

If a practice is not per se unlawful nor specifically

excluded from a misuse analysis by § 271(d)

a court must determine if that practice is reasonably

within the patent grant, i.e., that it relates to subject

matter within the scope of the patent claims. If so, the

practice does not have the effect of broadening the

scope of the patent claims and thus cannot constitute patent misuse. If, on the other hand, the

practice has the effect of extending the patentee’s

statutory rights and does so with an anti-competitive

effect, that practice must then be analyzed in accordance with the rule of reason. Under the rule of

reason, the finder of fact must decide whether the

questioned practice imposes an unreasonable restraint on competition, taking into account a variety

of factors, including specific information about the

relevant business, its condition before and after the

restraint was imposed, and the restraint’s history,

nature, and effect.

Id. (internal citations and quotation marks omitted).

County Materials is not claiming that Allan Block was

trying to extend the term of its patent by requiring post-
No. 06-2857 7

expiration royalties. It is wrong, therefore, to argue that

some form of per se analysis applies here. (By the same

token, we have no need to explore further the question

whether it makes any economic sense to treat these

arrangements so harshly. See Scheiber, 293 F.3d at 1020,

which questions the economic soundness of per se condemnation.) The covenant not to compete in the agreement

before us must therefore be assessed under a rule of

reason. County Materials argues that this clause is

unreasonable because it allows Allan Block to use its

patent to exclude competition in the market from

unpatented products.

As County Materials recognizes, it is essentially making

a leveraging argument. It argues both that “[l]everage is

presumed” and that there is a “proper method to conclude whether patent leverage was used.” Whatever else

one might say about leveraging theory (which as we noted

in Scheiber has been criticized in academic circles),

however, there is no doubt that there is nothing “presumed” about it outside the narrow confines of postexpiration royalties. In Brulotte, the Supreme Court held

that there are both proper and improper uses of patent

leverage. It acknowledged that “[a] patent empowers the

owner to exact royalties as high as he can negotiate with

the leverage of that monopoly[, b]ut to use that leverage to

project those royalty payments beyond the life of the

patent is analogous to an effort to enlarge the monopoly of

the patent.” 379 U.S. at 33 (emphasis added). But as both

Congress and the Court have come to recognize, it may

not be possible to exercise any leverage at all from a

patent, if that patent does not confer any market power

upon its owner. See Ill. Tool Works Inc. v. Independent

Ink, Inc., 547 U.S. 28, 42 (2006) (noting that Congress

did not intend the mere existence of a patent to constitute the requisite “market power” for purposes of

patent misuse and coming to the same conclusion for
8 No. 06-2857

antitrust purposes); see also Aronson v. Quick Point Pencil

Co., 440 U.S. 257 (1979) (holding that it was not against

public policy to enforce an agreement providing for deferred royalties on an invention, whether or not a patent

was ultimately granted).

The Federal Circuit’s decision in Windsurfing Int’l, Inc.

v. AMF, Inc., 782 F.2d 995 (Fed. Cir. 1986), provides

helpful guidance in deciding whether a particular use of a

patent might amount to “misuse” and thus furnish the

defense to a licensing agreement that County Materials is

looking for. In Windsurfing, the Federal Circuit said that

patent misuse does not exist unless the party asserting

it can “show that the patentee has impermissibly broadened the ‘physical or temporal scope’ of the patent grant

with anti-competitive effect.” 782 F.3d at 1001 (emphasis

added). This standard is satisfied by showing some

overall harm to competition, and so, contrary to County

Materials’s contentions, it fully takes into account the

fact that patents exist to “spur progress and innovation.”

The Windsurfing standard for patent misuse necessarily

considers whether progress and innovation have been

stymied and allows courts concretely to answer the

vague question whether progress has been slowed.

Most of the cases on which County Materials relies

come from an era before the Supreme Court recognized

the efficiencies that might flow from vertical restrictions,

which is the type of restriction we have when a patent

owner (which does not compete in the manufacturing

sector) imposes restraints on a manufacturing licensee.

See generally Leegin Creative Leather Prods., Inc. v. PSKS,

Inc., 127 S. Ct. 2705, 2714 (2007); Bus. Elecs. Corp. v.

Sharp Elecs. Corp., 485 U.S. 717, 734-36 (1988); Cont’l

T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 59 n.29

(1977). So, for example, Columbus Auto. Corp. v. Oldberg

Mfg. Co., 387 F.2d 643, 644 (10th Cir. 1968), assumed
No. 06-2857 9

that a clause in a patent license agreement that prohibited the licensee from handling competing products

was unlawful. Similarly, the Third Circuit’s decision in

National Lockwasher Co. v. George K. Garrett Co., 137

F.2d 255, 256 (3d Cir. 1943), assumed that an exclusive

dealing arrangement, under which a patent licensee

promised the licensor that it would work exclusively

with the licensor’s technology, was impermissible. This

is not the assumption that would govern today, either in

the courts or in the federal enforcement agencies. In the

Antitrust Guidelines for the Licensing of Intellectual

Property § 5.4 (April 6, 1995), the Department of Justice

and the Federal Trade Commission wrote that “[i]n the

intellectual property context, exclusive dealing occurs

when a license prevents the licensee from licensing,

selling, distributing, or using competing technologies.

Exclusive dealing arrangements are evaluated under the

rule of reason.” As support for the latter statement, the

Agencies cited Tampa Elec. Co. v. Nashville Coal Co., 365

U.S. 320 (1961), in which the Supreme Court used the

rule of reason to evaluate an exclusive dealing arrangement that did not involve intellectual property.

Anticompetitive effects, in short, are a critical element

of any patent misuse case that is evaluated under a rule

of reason approach. Windsurfing was one of the first cases

to recognize this; it required “a factual determination

[that] . . . reveal[s] that the overall effect of the license

tends to restrain competition unlawfully in an appropriately defined relevant market.” 782 F.2d at 1001-02

(emphasis added). A plaintiff is not required to show a

defendant’s subjective intent to obtain some kind of

leverage over its patent. We assume, for the sake of

argument, that it is also not necessary for a plaintiff to

plead a case that would suffice to show that the antitrust

laws have been violated. But, at the summary judgment

stage, some evidence tending to show an adverse effect
10 No. 06-2857

in an economically sound relevant market is essential

for any claim governed by the rule of reason.

With these principles in mind, we are ready to assess

County Materials’s case. To begin with, the Agreement

between County Materials and Allan Block shows no sign

of one-sidedness or abuse of power on Allan Block’s part.

County Materials received significant benefits, starting

with the right to use the patented technology for the

manufacture of the concrete blocks, and continuing with

the right to use Allan Block’s trademark and the right

to receive supporting technical, marketing, and strategic

services from Allan Block. In return, County Materials

had to promise to pay royalties to Allan Block and to

devote significant efforts to the exploitation of Allan

Block’s patent. If County Materials had been free to pick

and choose among all potentially competing products on

the market, Allan Block may have signed over the rights

to use its patent and know-how for little or nothing in

return. Allan Block’s services alone have considerable

value for any company undertaking the manufacture and

sale of these products (or so the parties could have concluded), whether or not they are tied to a patented product. Nothing in these facts suggests that Allan Block

needed or used any kind of leverage made possible by

the patent to secure County Materials’s promise to refrain from working with all but the designated two competing products, or its promise to refrain from using other

products for 18 months after the expiration of the Agreement.

In fact, this was not a particularly onerous covenant not

to compete. It allowed County Materials to continue to

manufacture and sell not one but two competing products,

which the district court reasoned would “guarantee

plaintiff could always compete with defendant in the

landscape block market.” In addition, the clause had

both temporal and geographical limits. It lasted for only
No. 06-2857 11

18 months after the Agreement’s termination (a period

which no one contends goes beyond the duration of Allan

Block’s patent) and applied only to County Materials’s

exclusive production territory, which was a section of

Wisconsin. Although the non-compete clause may have

hurt County Materials’s ability to compete as aggressively

as it would have liked in the concrete block market in

northwest Wisconsin, there does not appear to be any

evidence in the record showing that these limited requirements have hurt competition for cement blocks in County

Materials’s former exclusive territory. In the related field

of antitrust, the Supreme Court has said that “[i]t is

axiomatic that the antitrust laws were passed for the

protection of competition, not competitors.” Brooke Group

Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209,

224 (1993) (internal quotation marks omitted). Independent Ink, supra, held that the principles underlying the

patent misuse doctrine are closely aligned to those underlying antitrust law. Without a showing that this clause

had any effect on the broader market for concrete block

(as opposed to an effect only on County Materials), its

purported patent misuse defense cannot succeed.

IV

Even if its patent misuse argument fails, County Materials maintains that the covenant not to compete violates

general principles of Minnesota law, which applies here.

Minnesota courts look to three factors in evaluating

this kind of clause: it must (1) protect a legitimate interest of the party in whose favor it is imposed, (2) be reasonable as between the parties, and (3) not be injurious

to the public. Haynes v. Monson, 224 N.W.2d 482, 484

(Minn. 1974). Minnesota decisions on point do not allocate

the burden of proving or disproving these factors, but

rather look to the court to weigh the evidence in support

of or against each factor.
12 No. 06-2857

As for the first factor, we are satisfied that Allan Block

had a legitimate interest in the other resources and

intangibles that it gave to County Materials as part of the

Agreement. “Legitimate interests that may be protected

include a company’s ‘goodwill, trade secrets, and confidential information.’ ” Medtronic, Inc. v. Advanced Bionics

Corp., 630 N.W.2d 438, 456 (Minn. Ct. App. 2001) (internal quotation marks omitted). County Materials claims

that Allan Block “admitted it could not even identify any

confidential information supplied to [County Materials].”

That is not, however, a fair account of what the Allan

Block officials said. Allan Block officer Robert Gravier

testified that Allan Block “provided a stream of information relating to the technology over a 12-year period of

time and encompassing manufacturing, molds, engineering, marketing and—and supporting the sale of the blocks

under the license.” This suffices to show that goodwill,

confidential information, and trade secrets were given to

County Materials. Allan Block employee Timothy Bott

testified,

I made several person[al] trips over to the [County

Materials] Eau Claire facility. . . . There were numerous phone calls over the 12- or 13-year history of us

working together, everything from mix design to actual

issues, making the product. I was at the Eau Claire

facility when they initially produced the first block.

I assisted with the molds and other issues, training

their staff on the differences between the different

products and the configurations of the molds.

Bott also testified specifically as to the engineering

support given to County Materials:

We provide a service that’s both formal and informal.

The formal service allows for someone to have us

prepare preliminary designs, working with the local

engineer to assist in the facilitation . . . of [County
No. 06-2857 13

Materials] . . . landing a project that requires engineering. We work with the engineers that locally will

review and do the final design, to educate them on the

subject matter. This product concept and this design

concept . . . is relatively new, and so most engineers

have little or no education relative to this.

(emphasis added). None of this testimony has been disputed. The record shows that Allan Block had a legitimate

interest in the resources and support that it gave to

County Materials during their 12-year relationship.

The second factor is whether the agreement is reasonable as between the parties. Minnesota courts require that

non-compete agreements not be greater than necessary

to protect the legitimate business interest. Dynamic Air,

Inc. v. Bloch, 502 N.W.2d 796, 799 (Minn. Ct. App. 1993).

The Dynamic decision requires courts to consider “the

nature and character of the employment, the nature and

extent of the business, the time for which the restriction

is imposed, the territorial extent of the covenant, and

other pertinent conditions.” Id. Although these factors

were used in assessing an employee’s non-compete clause

in Dynamic, we find them equally useful in evaluating

the non-compete provision at issue here. The provision is

well-tailored to the legitimate interests of Allan Block. As

part of its agreement, Allan Block provided a significant

amount of start-up assistance and ongoing technical and

marketing assistance to County Materials. These services presumably cost time and money. Requiring a lag

time before County Materials can produce new products

that compete with those previously licensed to it by Allan

Block allows Allan Block to retain some of the value of its

services. The Agreement was structured in a way that

would eliminate any incentive on County Materials’s

part to use Allan Block to get its own concrete block

business started and then breach the contract once it

had taken advantage of Allan Block’s assistance. Further
14 No. 06-2857

supporting the reasonableness of this restriction is the

fact that it extends only to the geographic area in which

County Materials sold the Allan Block blocks as part of

the Agreement.

Further, when a licensee gets an exclusive patent

license, as County Materials did here, it is benefitting

from the patentee’s property rights more than it would

with a non-exclusive license. The licensee reaps the

rewards of the patent up to the bounds of its exclusivity.

Given this additional benefit, it seems only fair that the

licensee can be assigned part of the responsibility of

promoting the product in the broader market. Under a

clause like this, the licensee has a stake in ensuring the

success of the product. If the granting of an exclusive

license is not itself a restraint on trade (as it is not, and no

one in this case alleges otherwise), then requiring as a

condition of that license that the licensee not undermine

the value of the bargain is not unreasonable either.

The final factor is that the challenged restraint must

not be injurious to the public. Because covenants not to

compete are not categorically prohibited by Minnesota

law, it must be the case that such a clause would not be

deemed injurious to the public unless some particular

harm was alleged. Minnesota courts have upheld noncompete provisions in markets where multiple producers

of like goods are present, reasoning that the general public

is not injured by a non-compete agreement because

competition in the relevant market is healthy. Bess v.

Bothman, 257 N.W.2d 791, 795 (Minn. 1977). County

Materials has made no attempt to produce evidence that

the relevant geographic area here is subject to a

monopoly in landscape bricks made with Allan Block’s

technology. To the contrary, the fact that the production

agreement listed two alternative products as exceptions

to the non-compete provision is evidence that good substitutes for Allan Block products existed and were sold
No. 06-2857 15

within the territory covered by the Agreement. There is

no basis to conclude that the non-compete provision

violates Minnesota state law.

V

Finally, County Materials argues that the district court

abused its discretion in denying its motion to unseal

portions of the record. A district court’s decision to seal

portions of the record is reviewed for abuse of discretion.

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

“The trial court is in the best position to weigh fairly the

competing needs and interests of parties affected by

discovery. The unique character of the discovery process

requires that the trial court have substantial latitude to

fashion protective orders.” Rhinehart, 467 U.S. at 36.

Of course,

[p]rotective orders entered during discovery in civil

cases have . . . justification . . . and . . . limits. Confidentiality while information is being gathered not

only protects trade secrets but also promotes disclosure: parties having arguable grounds to resist discovery are more likely to turn over their information if

they know that the audience is limited and the court

will entertain arguments focused on vital knowledge

that a party wants to use later. . . . Information that

is used at trial or otherwise becomes the basis of

decision enters the public record. . . . Secrecy persists only if the court does not use the information to

reach a decision on the merits.

In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992). County

Materials has not asserted that the district court’s decision relied on sealed portions of the record (because it did

not), and so it needs some other basis on which to challenge the court’s ruling.
16 No. 06-2857

We have held that “the public at large pays for the courts

and therefore has an interest in what goes on at all stages

of a judicial proceeding[, but t]hat interest does not

always trump the property and privacy interests of the

litigants.” Citizens First Nat’l Bank v. Cincinnati Ins. Co.,

178 F.3d 943, 945 (7th Cir. 1999). The public’s interest

“can be overridden only if the . . . [privacy] interests

predominate in the particular case, that is, only if there

is good cause for sealing a part or the whole of the record

in that case.” Id. Citizens concluded that

[t]here is no objection to an order that allows the

parties to keep their trade secrets (or some other

properly demarcated category of legitimately confidential information) out of the public record, provided

the judge (1) satisfies himself that the parties know

what a trade secret is and are acting in good faith in

deciding which parts of the record are trade secrets

and (2) makes explicit that either party and any

interested member of the public can challenge the

secreting of particular documents.

Id. at 946. The district court gave Allan Block a limited

ability to keep under seal certain confidential documents,

including transcripts of certain Allan Block employees

and a few papers. Even though the district court may

have acted too quickly when it summarily rejected

County Materials’s motion to unseal the documents, at

this point in the case it is County Materials’s burden to

show how this prejudiced it. It has not done so. Rather

than pointing to particular documents and explaining

why they should have been unsealed, County Materials

has argued instead that everything should have been

unsealed. In fact, the district court did unseal portions of

the sealed documents, including everything on which it

relied in its opinion. Without more information from

County Materials, we are not in a position to say either

that the court abused its discretion by failing to unseal
No. 06-2857 17

more or that County Materials was prejudiced by the

court’s actions.

The judgment of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-18-07