|DOJ Approves 3D DTM Merger,
but Requires Patent Licensing
|8/16. The U.S. Department of Justice (DOJ) Antitrust Division
allowed 3D Systems
Corporation to purchase DTM
Corporation, provided that 3D and DTM license their Rapid
Prototyping (RP) patents to a company that will compete in the
3D (Nasdaq: TDSC) and DTM (Nasdaq: DTMC) announced their plans
to merger on April 3, 2001. See, 3D
release and DTM
release. 3D, Systems, based in Valencia, California, makes
solid imaging products and services. DTM, based in Austin,
Texas, makes rapid prototyping and manufacturing systems.
On June 6, the DOJ filed a complaint
[PDF] in U.S. District Court (DDC)
against 3D and DTM alleging violation of Section 7 of the
Clayton Act, as amended, 15 U.S.C.
§ 18. The DOJ alleged that "The acquisition would
combine the two largest manufacturers of RP systems in the
United States, and would result in the combined company having
a domestic market share of approximately 70% by revenue. It
would entirely eliminate the existing competition between 3D
Systems and DTM in the development, production, and sale of RP
systems -- competition which has resulted in technological
improvements to RP systems as well as lower prices to
companies that purchase these systems." The DOJ asked
that the merger be declared unlawful, and enjoined. The
Presidents of both companies called the lawsuit "without
merit". See, 3D
"Companies, universities and government agencies rely
upon rapid prototyping to develop and create models of next
generation products," said Charles James, AAG for the
Antitrust Division, in an August 16 DOJ
release. "This resolution preserves competition and
promotes innovation by allowing a firm presently competing
abroad to enter the U.S. market."
The procedure to be followed is the filing of a proposed
consent decree and competitive impact statement with the
court, along with the publication in the Federal Register. Any
person may submit written comments to the DOJ within 60 days
of publication. The Court may then enter final judgment.
|Qualcomm Makes $300 Million
Committment to NextWave
announced a "commitment to make a $300 million strategic
investment in NextWave
Telecom, which is currently deploying a CDMA2000 wireless
network designed to provide high-speed wireless Internet
access and voice communications services." Qualcomm also
stated that this "is in connection with the equity
financing provided for in NextWave's plan of reorganization
that was filed on August 6, 2001, and is subject to NextWave's
successful consummation of its plan of reorganization."
NextWave obtained spectrum licenses at FCC auctions in 1996.
The FCC permitted NextWave to obtain the licenses, and make
payments under an installment plan, thus creating a debtor
creditor relationship between NextWave and the FCC. NextWave
did not make payments required by the plan, and filed a
Chapter 11 bankruptcy petition. The FCC cancelled the
licenses. The U.S. Court of Appeals (DCCir) ruled in its June
22, 2001, opinion
that the FCC is prevented from canceling the spectrum licenses
by § 525
of the Bankruptcy Code. The FCC has indicated that it may
petition the Supreme Court for writ of certiorari.
in Thornton v. McClatchy re ADA and keyboard related
repetitive stress injuries, 8/15 (PDF, USCA).
|9th Circuit Rules on ADA
and Keyboard Related Repetitive Stress Injury
|8/15. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Thornton
v. McClatchy, in which it held, two to one,
that repetitive stress injuries that limit one's ability to
use a computer keyboard do not constitute a disability within
the meaning of the ADA.
Facts. Thornton worked for the Fresno Bee, a McClatchy
newspaper, as a writer. This required her to work with a
keyboard. She suffered from work related repetitive stress
disorder and could not operate a keyboard or write by hand for
more than brief periods. McClatchy concluded that she could
not perform her job, and terminated her employment.
District Court. Thornton filed a complaint in the U.S.
District Court (EDCal)
against McClatchy alleging violation of the Americans with
Disabilities Act (ADA) and the California Fair Employment and
Housing Act for terminating her on the basis of disability.
The District Court granted McClatchy summary judgment on the
grounds that she was not disabled.
Court of Appeals. The Appeals Court affirmed the
summary judgment on the ADA claim. It wrote that
"Thornton was able to perform a wide range of manual
tasks, including grocery shopping, driving, making beds, doing
laundry, and dressing herself. Her inability to type and write
for extended periods of time is not sufficient to outweigh the
large number of manual tasks that she can perform. The ADA
requires a "substantial limitation" in performing
manual tasks ..." However, it reversed on the state law
claim. Judge Hawkins wrote the opinion of the Court, in which
Judge Kozinski joined.
Dissent. Judge Berzon wrote a lengthy dissent regarding
computer use and the ADA. She wrote that "The fact that
using a computer is so essential to modern life that teaching
that skill universally has become embedded in our national
educational policy must inform our understanding of the ADA's
disability definition, for two reasons: First, the ADA is a
statute addressed generally to the opportunities of the
disabled for success in modern society. That a particular
manual skill is of such importance to success in life that it
is now taught to most children and used pervasively throughout
their schooling is surely some indication that, like reading,
spelling, and adding, it is a skill essential to such success.
Second, and critically, the ADA definition of disability at
issue in this case applies not only in the employment context
but in educational and testing settings as well, to determine
whether reasonable accommodations are required. ... The sum of
the matter is that the ability to use one's arms and hands to
operate a computer and handwrite is, in the modern world, a
skill that is essential both in getting an education and in
earning a living, and is useful in carrying out many
activities of daily life. The question before us is whether
Congress, in enacting the ADA, blinkered this reality and, as
the majority holds, determined that individuals who cannot
carry out the manual tasks involved in written communication
are not substantially impaired in carrying out manual tasks as
long as they can carry out a number of other tasks requiring
the use of their arms and hands."
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|Patent Infringement Cases
|8/16. The U.S.
Court of Appeals (FedCir) issued its opinion in Monsanto
v. Mycogen, a patent infringement case
involving genetically altering plants to make them more
resistant to insects. Monsanto appealed from a final judgment
of invalidity and noninfringement of its U.S.
Patent No. 5,500,365. The Appeals Court affirmed.
8/14. The U.S.
Court of Appeals (FedCir) issued its opinion in Mycogen
Plant Science v. Agrigenetics, a petition for
rehearing of the Court's initial opinion, in which it held
that Mycogen is not entitled to invoke the doctrine of
equivalents with respect to claims 13 and 14 of Mycogen's U.S.
Patent No. 5,380,831 titled "Synthetic insecticidal
crystal protein gene". The Appeals Court denied the
petition for rehearing.
8/15. The U.S.
Court of Appeals (FedCir) issued its opinion in Generation
II Orthotics v. Medical Technology Inc., a
patent infringement case involving post operative knee braces.
Generation II appealed the District Court’s claim
construction and resulting judgment of noninfringement of U.S.
Patent Nos. 5,302,169
The Appeals Court affirmed in part, and vacated in part.
|8/16. The Internet Assigned
Numbers Authority (IANA) published in its web site a report
on the establishment of the .name Top-Level Domain (TLD).
8/16. Microsoft announced the filing of three complaints in
U.S. District Court (EDNY)
against software resellers alleging distribution of
counterfeit and/or infringing Microsoft software. See, Microsoft
8/16. Andersen issued a
in which it stated that it had conducted a study that
"shows that many U.S. multinational corporations doing
business internationally have made little progress in adopting
and implementing minimum worldwide standards for ensuring the
privacy of individuals' personal data." Andersen stated
that it studied 75 Fortune 500 companies to determine whether
they meet the "Safe Harbor" privacy guidelines for
complying with the EU Directive on Data Protection. It found
that none were in full compliance.
|Tuesday, August 21
|Deadline to submit comments to the FCC in response to its
Notice of Proposed Rulemaking (NPRM) regarding the concept of
a unified intercarrier compensation regime, including
reciprocal compensation, and alternative approaches such as
"bill and keep." See, notice
in Federal Register, May 23, 2001, Vol. 66, No. 100, at Pages
28410 - 28418.