|Patent Infringement and
State Sovereign Immunity
|7/20. The U.S.
Court of Appeals (FedCir) issued its opinion in State
Contracting & Engineering v. Florida, a
case involving the application of state sovereign immunity to
patent infringement and related claims.
The plaintiffs hold two patents pertaining to highway sound
barrier walls. Plaintiffs bid on, and received construction
contracts from the State of Florida Department of
Transportation (FDOT). Plaintiffs subsequently obtained
patents on the technology included within their proposals. The
FDOT included data from these proposals in subsequent requests
for bids. Plaintiffs sought royalties. After unsuccessful
negotiations, plaintiffs filed a complaint in U.S. District
against Florida and seven private contracts. Plaintiffs
alleged direct infringement by Florida, direct infringement by
the private contractors, a Lanham Act violation by Florida,
unconstitutional taking by Florida, and breach of contract by
Florida. The District Court granting summary judgment to
The Appeals Court affirmed the District Court's grant of
summary judgment to Florida as to the patent infringement and
Lanham Act claims on grounds of sovereign immunity. It also
affirmed the grant of summary judgment to Florida as to the
takings claim and the breach of contract claim. It vacated and
remanded the District Court's grant of summary judgment to the
private contractors on the patent infringement claims.
|DOJ Forms Anti Hacking and
IP Crimes Units
|7/20. Attorney General John Ashcroft gave a speech
in which he announced the formation of nine new units at the Department of Justice named
Computer Hacking and Intellectual Property (CHIP) units. The
new units will prosecute computer intrusions, copyright and
trademark violations, theft of trade secrets and economic
espionage, theft of computer and high tech components, fraud,
and other Internet crimes. One such unit already exists for
the San Francisco area. New units will be created for Los
Angeles, San Diego, Atlanta, Boston, New York City, Dallas,
Seattle and northern Virginia. The CHIP units will be staffed
with a total of 77 people, of which 48 will be prosecutors.
AG Ashcroft stated that "These new teams will prosecute
vigorously those responsible for cybercrime. As a result we
hope to reinforce the message to would-be criminals that there
are no free passes in cyberspace. Crimes will be investigated
and criminals will be prosecuted to the fullest extent of the
|Evans Wants More Time to
Develop New 3G Plan
|7/19. Commerce Secretary Donald Evans sent a letter
to FCC Chairman Michael Powell regarding plans to
"identify additional spectrum for third generation (3G)
advanced mobile wireless services." He stated that this
will be done "with additional time". While the
Clinton administration had developed a plan, and set a
timetable for identifying and allocating spectrum for 3G
wireless systems, Evans stated that "I have directed the
Acting Administrator of the National
Telecommunications and Information Administration to work
with the FCC to develop a new plan for the selection of 3G
P/CEO Tom Wheeler had this reaction: "Today's letter is
good news for the wireless industry. It confirms that the
highest levels of government, from both the commercial and
military perspectives, are searching for a “win-win”
solution on spectrum allocation for the next generation of
wireless services. The letter also calls for both speed and
flexibility in finding that solution - two characteristics
that will be necessary as we strive in the weeks ahead for a
solution that preserves national security and enhances our
economy. ..." See, release.
|Export Control Bills
|7/19. Rep. David
Dreier (R-CA), Amo
Houghton (R-NY) and Jeff
Flake (R-AZ) introduced HR 2568, the Export Administration
Act of 2001. It is identical to S
149 as reported by the Senate Banking
Committee on March 22, 2001. The bill would ease
restraints on the export of most dual use products, such as
computers and software. The bill was referred to the Committee
on International Relations. See, Dreier release.
7/18. Rep. Robert
Menendez (D-NJ), Rep. Amo Houghton (R-NY), Jeff Flake
(R-AZ), and Earl Blumenauer (D-OR) introduced HR
2557, the Export Administration Act of 2001.
7/20. Rep. Benjamin
Gilman (R-NY) introduced HR 2581, a bill to provide
authority to control exports.
in Southco v. Kanbridge re the originality requirement for
copyright protection, 7/20 (HTML, USCA).
re formation of cybercrime units at DOJ, 7/20 (HTML, DOJ).
2526, the Internet Tax Fairness Act, 7/17 (HTML, LibCong).
2536, the Broadcast Ownership for the 21st Century Act,
7/17 (HTML, LibCong).
1189, a bill to require the FCC to amend its newspaper
cross ownership rules, 7/17 (HTML, LibCong).
2579, the Internet Gambling Payments Prohibition Act, 7/20
2557, the Export Administration Act of 2001, 7/18 (HTML,
|The Originality Requirement
|7/20. The U.S.
Court of Appeals (3rdCir) issued its opinion
v. Kanbridge, a case regarding the originality
requirement for copyright protection.
Facts. Southco manufactures captive screw fasteners,
devices used in assembling the panels of computers and
telecommunications equipment. Southco developed a numbering
system to serve as a shorthand description of the relevant
characteristics of each fastener to assist its employees and
customers in identifying and distinguishing among its
products. This nine digit numbering system has become an
industry standard. Kanebridge is a distributor of competing
fasteners. It began using Southco's part numbers in comparison
charts that were included in advertisements and other
literature that it provides to customers.
District Court. Southco filed a complaint in U.S.
District Court (EDPenn)
against Kanbridge alleging patent infringement. The District
Court granted Southco a preliminary injunction. This appeal
Appeals Court. Kanbridge argued several issues on
appeal (including lack of originality, the scenes a faire
doctrine, the merger doctrine, and fair use). However, the
Appeals Court reversed pursuant to the lack of originality,
and therefore did not address the other issues. The Court
102 of the Copyright Act (which provides copyright
protection for "original works of authorship") and
the 1991 opinion
of the Supreme Court in Feist Publications v. Rural Tel.
Serv., 499 U.S. 340 (which held that the originality
requirement means that a work must have been
"independently created by the author" and must
possess "at least some minimal degree of
creativity."). The Appeals Court held that there was no
originality here. It wrote: "there is simply no room for
creativity when assigning a number to a new panel fastener.
The part has certain relevant characteristics, and the
numbering system specifies certain numbers for each of those
characteristics. As a result, there is only one possible part
number for any new panel fastener that Southco creates. This
number results from the mechanical application of the system,
not creative thought."
|FCC Approves Verizon 271
Application in Connecticut
|7/20. The FCC approve
271 application to provide in region interLATA service in
Connecticut. Verizon serves only two communities in
Connecticut with a total of 60,000 lines. See, FCC
release. Verizon has a 271 application pending with the
FCC for Pennsylvania, and plans to file applications later
this year for the states of New Hampshire, New Jersey, Rhode
Island, and Vermont. See, Verizon
Sprint General Counsel Richard Devlin had this reaction:
"Sprint is disappointed that the FCC did not use this
Section 271 application to signal a get-tough approach to
Verizon and other Bell companies that have not truly opened up
their local markets to competition. Verizon's Connecticut
customers, like its New York customers, will experience very
limited local competition - and not benefit from the promise
of full local competition under the Telecom Act." See, release.
|House Committee Examines
Violent Video Games
|7/20. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet held a hearing on the software, movie and
music industries' efforts to curb children's exposure to
Rep. Billy Tauzin
(R-LA), Chairman of the full committee, said in his prepared
statement that "there is legislation currently before
the Energy and Commerce Committee that would enable the
government to enforce policies against marketing and selling
this material to minors, and we need to think about it very
Douglas Lowenstein of the Interactive
Digital Software Association (IDSA) addressed games. He
argued in his prepared
testimony that a majority of game players are adults, and
that since games are costly, children need parental consent to
obtain them. He also testified that "we do live in a
world where media is incredibly complex, where the Internet
spans the globe, where consumers, young and old, have access
to information in ways never before imagined. In this
environment, it is simply not possible or realistic to create
an airtight system where young people do not hear about, or
even obtain, games that are not appropriate for them."
Lee Peeler of the FTC said in his prepared
testimony that "Seventy percent of the 118 electronic
games with a Mature rating for violence the Commission
examined targeted children under 17."
See also, prepared statements of other witnesses: Jack
Valenti (Motion Picture Association of America), Hilary
Rosen (Recording Industry Association of America), Doug
McMillon (Wal-Mart Stores), and Daphne
White (The Lion & Lamb Project).
|7/20. The U.S.
Court of Appeals (FedCir) issued its opinion in Dayco
v. Total Containment, a patent infringement
case. The case involved claims of infringement of several
patents pertaining to cylindrical hoses. The District Court
granted summary judgment of non-infringement. The Appeals
Court affirmed as to one patent, and vacated and remanded as
to the others.
7/20. Microsoft filed its opposition
[PDF] to the DOJ's July 13 motion
[PDF] for immediate issuance of mandate in the Microsoft
antitrust case. Microsoft would like the Appeals Court to
address its July 18 Petition
for Rehearing [PDF] before returning the case to the
District Court. It stated that the petition "raises a
substantial question and thus merits the attention of the
Court. The mandate plainly should not issue while the Court is
still considering Microsoft’s petition and plaintiffs’
|People and Appointments
|7/23. Philip Beck joined the Antitrust Division of the
Department of Justice. He will take over as lead trial counsel
in the Microsoft antitrust case. He was previously a partner
in the Chicago office of the law firm of Bartlit Beck. The DOJ
release announcing his appointment also referenced the
DOJ's "successful prosecution of the case to this
7/20. The Senate confirmed Ralph Boyd to be Assistant
Attorney General for the Civil Rights Division and Eileen
O'Connor to be Assistant Attorney General for the Tax
Paoletta joined the Washington DC office of the law
firm of Wiley Rein &
Fielding as a partner in its Communications practice. She
will head the International Telecommunications Group. She was
previously VP of Government Relations at Level 3
Communications. Prior to that she worked for the House Commerce Committee.
Before that she worked as Director of Telecommunications Trade
Policy at the Office of the U.S.
Trade Representative. And before that, she worked in the
Office of International Communications at the FCC. See, WRF
7/17. Roy Bartlett joined the San Francisco office of
the law firm of Covington &
Burling as Of Counsel. He previously was a partner in the
law firm of White &
Case. He will focus on complex business litigation
matters, with an emphasis on intellectual property concerns.
7/23. John Elwood joined the Criminal Division of the
Department of Justice as Counselor to the Assistant Attorney
General Michael Chertoff. He previously was a partner in the
Washington DC office of the law firm of Baker Botts. See, BB release
|Monday, July 23.
|1:00 PM. The Senate
Commerce Committee's Science, Technology, and Space
Subcommittee will hold a hearing to examine the use of
technology in the health care system, focusing on
opportunities and obstacles regarding the use of Internet
technology to empower patients to improve their health care.
The witnesses will be Tom Scully (Centers for Medicare and
Medicaid Services), Sherrilynne Fuller (University of
Washington School of Medicine), John Kenagy (Harvard Business
School), Willie May (NIST), Albert Patterson (Premier). See, release.
Location: Room 253, Russell Building.
|Tuesday, July 24
|8:30 AM - 3:30 PM. The Consumer
Electronics Association will hold a conference titled
"The DTV Transition: Is Laissez Faire Fair?" The
keynote speaker will be Sen.
Conrad Burns (R-MT); he will speak at 8:35 AM. The price
is $199 in advance, and $299 at the door. Location: Ronald
Reagan Building and International Trade Center, Polaris Room,
1300 Pennsylvania Ave., NW, Washington DC. See, full
schedule and online
9:30 AM. The House
Commerce Committee's Telecommunications and Internet
Subcommittee will hold a hearing titled "U.S. Deployment
of Third Generation Wireless Services: When Will It
Happen and Where Will It Happen?" Location: Room 2123,
10:00 AM. The House Financial
Services Committee's Financial Institutions
Subcommittee will hold a hearing on HR
556, the Unlawful Internet Gambling Funding Prohibition
Act, and other Internet gambling proposals. Location: Room
2128, Rayburn Building.
RESCHEDULED TO JULY 31.
AM. The House
Commerce Committee's Subcommittee on Oversight and
Investigations will hold a hearing for titled "How Secure
is Sensitive Commerce Department Data and Operations? A Review
of the Department's Computer Security Policies and
Practices." Location: Room 2322, Rayburn Building.
10:00 AM. The House
Judiciary Committee will hold a meeting to mark up eight
bills, including HR
2047, the Patent and Trademark Office Authorization Act of
2002. Location: Room, 2141 Rayburn Building.
10:00 AM. The Cato Institute
will host a panel discussion titled "Broadband and the
Markets: Perspectives from the Investment Community."
The speakers will be Doug Ashton (Bear Stearns), Blake Bath
(Lehman Brothers), Scott Cleland (Precursor Group), and Erik
Olbeter (Schwab Capital Markets). Location: Cato Institute,
1000 Massachusetts Avenue, NW, Washington DC.
10:00 AM. The Senate
Banking Committee will hold a hearing on monetary policy
at which Federal Reserve Chairman Alan Greenspan will
testify. The Committee will also hold a business meeting to
consider the nomination of Harvey Pitt, to be a
Chairman of the SEC. Location:
Room 216, Hart Building.
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