Tech Law Journal Daily E-Mail Alert
August 23, 2001, 9:00 AM ET, Alert No. 255.
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MAPS Stops Blacklisting of Harris Interactive
8/21. Harris Interactive (HI) stated that it has reached an agreement with MAPS, a blacklisting service that had caused HI's e-mail surveys to be blocked by e-mail service providers that subscribe to MAPS's service. Under this agreement MAPS will stop its blacklisting of HI. See, HI release.
HI filed a complaint in U.S. District Court (WDNY) on July 31, 2000, against Microsoft (as operator of Hotmail), AOL, and other e-mail service providers, alleging violation of antitrust law, defamation, negligence, and other causes of action. All subscribed to the Realtime Blackhole List, which is maintained by the Mail Abuse Prevention System (MAPS). MAPS was also named as a defendant in that suit. AOL agreed to stop blocking HI email in August, 2000. Microsoft agreed to stop in September. HI then dismissed that suit. See, HI September 13, 2001 release.
HI is a market research, polling and consulting firm based in Rochester, New York. It issued a release on August 21, 2001, in which it stated that "As a result of its decision to fully transition to COI, Harris Interactive recently reached agreement with the Mail Abuse Prevention System, LLC (MAPS), whereby MAPS will immediately remove Harris Interactive from their real-time blackhole list (RBL)." Gordon Black, C/CEO of HI, also stated in the same release that "During the last year we've extensively tested a confirmed opt-in (COI) registration process. Interestingly, we've found that our COI panel members give far more thoughtful and comprehensive survey responses than non-COI panelists– making these members invaluable to our customers."
FCC Prepared to Grant Broadband PCS Licenses
8/22. The FCC released a public notice [PDF] in which it stated that it is prepared to grant 4 (out of over 400) licenses that were auctioned by the FCC in its C and F block broadband PCS auctions completed in January. This is Auction Event No. 35, the re-auction of licenses originally auctioned in 1996.
New Documents
FCC: public notice re C and F block broadband PCS auctions, 8/22 (PDF, FCC).
FCC: notice re expanding the definition of universal service, 8/22 (PDF, FCC).
USPTO: notice re draft convention on jurisdiction and judgments, 8/20 (HTML, USPTO).
Should Universal Service be Expanded to Include Broadband Internet Services?
8/22. The FCC and the Federal-State Joint Board on Universal Service released a notice [PDF] soliciting comments on expanding the definition of universal service. The notice states: "We also invite comment on whether any advanced or high-speed services should be included within the list of core services."
Nominally, universal service is the notion of providing basic telephone service to everyone who wants it. The theory underlying government involvement is that the costs of providing service vary by region and type of customer, and therefore, a series of cross subsidies are necessary to accomplish affordable pricing for all users. Universal service is also a powerful political rallying cry in the Congress, especially in the Senate, where sparsely populated states are over represented.
The Congress codified the FCC's longstanding practice of mandating universal service support for telecommunications services for high cost rural and low income areas in Section 254 of the Telecommunications Act of 1996. The section also instructed the FCC to extend universal service support to schools, libraries, and rural health care clinics. The FCC issued a report on May 7, 1997 broadly interpreting this program, which is also known as the e-rate, to extend, not only for telecommunications services, but also to Internet access and internal connections for Internet services. See also, FCC's universal service web section.
However, aside from this e-rate program, the FCC has interpreted universal service to include only old fashioned phone services, including single party service, voice grade access to the public switched telephone network, Dual Tone Multifrequency signaling or its functional equivalent, access to emergency services, access to operator services, access to interexchange service, access to directory assistance, and toll limitation services for qualifying low income consumers.
Universal service cross subsidies have run from long distance to local service, business to residential subscribers, urban to rural subscribers, and in the case of the e-rate, all phone subscribers to schools, libraries, and rural health clinics. The notice just released raises the question of what, beyond currently included services, should be included in cross subsidy regimes. The notice "invites comment on what services, if any, should be added to or removed from the list of core services eligible for federal universal service support and how those core services should be defined." The notice also references in several places "Internet access" and "high-speed and advanced services" as services under consideration.
Comments are due 60 days from publication in the Federal Register, which has not yet happened. Reply comments are due within 120 days from publication in the Federal Register.
USPTO Seeks Comments on Draft Convention on Jurisdiction and Judgments
8/20. The USPTO published in the Federal Register a notice of hearing and request for comments on the Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. The USPTO will hold a hearing on September 11, 2001, form 9:30 AM until 5:00 PM. Persons who wish to testify must submit a request by August 31, 2001.  The hearing will be held at the Patent Theater, Second Floor of Crystal Park 2, 2121 Crystal Drive, Arlington, Virginia. Written comments are due by October 19, 2001. See, Federal Register, August 20, 2001, Vol. 66, No. 161, at Pages 43575 - 43578.
The Hague Conference on Private International Law is negotiating a Convention designed to create common jurisdiction rules for international civil and commercial cases and to provide for international recognition and enforcement of judgments issued under these rules.
Federal Circuit Rules in McGinley v. Franklin Sports
8/21. The U.S. Court of Appeals (FedCir) issued a divided opinion in McGinley v. Franklin Sports, a patent infringement case involving baseballs in which the Appeals Court addressed obviousness, and the role of trial court juries in suits involving claims of obviousness. The Court reversed a trial court JMOL which set aside a jury verdict.
Michael McGinley is the holder of U.S. Patent No. 5,407,193, which discloses a regulation baseball with markings for the placement of fingers for different types of pitches. McGinley filed a complaint in U.S. District Court (DKan) against Franklin Sports (FS) alleging patent infringement. The jury returned a verdict in favor of McGinley, finding the patent not invalid and willfully infringed. The District Court set aside the jury's verdict and granted FS's motion for JMOL on invalidity, concluding that as a matter of law, plaintiff's patent is invalid as obvious. The Court of Appeals reversed the grant of JMOL in favor of FS and ordered the jury's verdict reinstated. Judge Clevenger wrote the opinion of the Court, in which Judge Mayer joined. Judge Michel dissented.
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