Tech Law Journal Daily E-Mail Alert
September 6, 2001, 9:00 AM ET, Alert No. 262.
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House Passes Patent Bills
9/5. The House passed by voice votes three non controversial intellectual property related bills -- HR 1866, HR 1886, and HR 2048. HR 1866 overturns the 1997 opinion of the U.S. Court of Appeals (FedCir) in In Re Portola Packaging, in which the Court held that the restriction on the scope of patent reexaminations to "substantial new questions" precludes the consideration of prior art that was before the examiner. The key language of the HR 1866 amends 35 U.S.C. §§ 303(a) and 312(a). It adds the following: "The existence of a substantial new question of patentability is not precluded by the fact that a patent or printed publication was previously cited by or to the Office."
HR 1886 affords all participants, including third party requesters, in reexamination proceedings, judicial review before federal appeals courts. HR 2048 requires the Attorney General to submit a report to the House and Senate Judiciary Committees regarding the effectiveness of State Justice Institute operations.
9/5. The USPTO published a notice in the Federal Register regarding its notice of proposed rulemaking (NPRM) pertaining to requirements for claiming the benefit of prior filed applications under 18 month publication of patent applications. Comments are due by October 5, 2001. See, Federal Register, September 5, 2001, Vol. 66, No. 172, at Pages 46409 - 46415.
9/5. The USPTO published the September issue of the PTO Pulse in its web site.
Shapiro Named Interim US Atty for ND California
9/5. The Department of Justice announced the appointment of David Shapiro as the interim United States Attorney for the Northern District of California. See, USAO release.
Report Opposes New Privacy Legislation
9/5. The Pacific Research Institute released a report titled "Consumer Privacy: A Free Choice Approach." The report concludes that "New laws governing the collection of consumer information are not needed to bolster electronic commerce, protect businesses from state government legislation, or to emulate other countries. Instead, new information restrictions would usurp consumer choice, drive up prices for consumers, and strangle business, especially small business, with red tape."
The report, which was written by Sonia Arrison, also concludes that "The FTC's Fair Information Practice Principles (FIPPs) are unnecessary, costly, and, worst of all, may wind up giving consumers less privacy. One of the worst potential unintended consequences of the FIPPs is that consumers, under the impression that the government is protecting them, will lose interest in the technologies that protect privacy."
California Court Rejects Filed Rate Doctrine Defense in Slamming Case
9/5. The California Court of Appeal (3rd) issued its opinion [PDF] in Lovejoy v. AT&T, a slamming case.
Lovejoy filed a complaint in California state court against AT&T alleging fraud in connection with the unauthorized switching of a telecommunications carrier. Lovejoy alleged that AT&T falsely asserted that he had authorized the switching of his 800 service, and then terminated the service, reassigned his number, and ruined his business. AT&T moved for judgment on the pleadings,  arguing that the conduct plead by Lovejoy does not constitute actionable fraud, and that the action is barred by the filed rate doctrine. The trial court dismissed the case based in its interpretation of the law of fraud. Lovejoy appealed. The Court of Appeal, addressing both the fraud issues and the filed rate doctrine, reversed and remanded.
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Insider Trading Cases
9/4. Malcolm Wittenberg plead guilty in U.S. District Court (NDCal) to one count of insider trading, in violation of 15 U.S.C. §§ 78j and 78ff. The Plea Agreement [PDF] states that Wittenberg learned of a pending merger of Sun Microsystems and Forte Software in the course of his representation of Forte. He then traded in Forte Software stock. Wittenberg admitted that he used material, non public information when he purchased stock in Forte Software. The plea agreement also states that Wittenberg at all relevant times was an attorney and partner in the San Francisco office of the Oakland law firm of Crosby Heafey Roach & May. The firm web site lists him as "of counsel". It further states that he "currently represents clients in all aspects of acquiring and protecting patents and trademarks. He also has extensive experience in technology licensing and product distribution, representing clients in both domestic and international transactions." See also, April 16, 2001 two count indictment [PDF] and September 4, 2001 USAO release.
8/27. A jury of the U.S. District Court (CDCal) convicted Craig Smith of obstructing an investigation by the SEC into alleged insider trading of stock in Ancor Communications. See, SEC release.
Video Competition and Broadband Internet Access
9/5. September 5 was the deadline to file reply comments with the FCC in its Notice of Inquiry (NOI) regarding video competition. The NRTC submitted a comment [PDF] in which it stated the "the cable industry is limiting its broadband offerings almost exclusively to metropolitan areas" and that "Satellite distribution technology -- not cable -- represents the best option available to provide High speed Internet Access as well as local television service throughout rural America." It further argued that the FCC should take steps to promote access in rural areas. Similarly, Northpoint and Broadwave jointly submitted a comment [PDF] in which they argued that the multichannel video program distribution (MVPD) "marketplace is currently bereft of competitive alternatives" and that DBS providers and others are trying to delay deployment of Northpoint's technology, which they assert will provide MVPD, local TV, and broadband Internet access to rural areas at affordable prices.
The NCTA submitted a comment [PDF] in which it concluded that "Despite the annual protestations of competitors seeking artificial regulatory boosts from the Commission, the evidence of full and effective competition among providers of video programming is compelling. Competition has arrived, it is here to stay, and the Commission should say so ..." AT&T submitted a comment [PDF] in which it argued that the MVPD market is not dominated by cable.
On June 20, 2001 the FCC adopted a NOI into the status of competition in the market for the delivery of video programming. The FCC stated in a release that "The NOI seeks information that will allow the FCC to evaluate the status of competition in the video marketplace, prospects for new entrants to that market, and its effect on the cable television industry and consumers. The NOI also solicits information regarding the extent to which consumers have choices among video programming distributors and delivery technologies." See, CS Docket No. 01-129.
Internet Crime
9/4. A grand jury of the U.S. District Court (CDCal) returned an indictment against Gregory Howearth for interstate travel for the purpose of having sez with a minor and use of the Internet to entice a minor to engage in illegal sezual activity. Howearth had communicated in an Internet chat room with an undercover law enforcement officer who posed as a thirteen year old. See, USAO release.
Kermit the Frog Joins FCC
9/5. The FCC announced that "The Hallmark Channel, in association with The Jim Henson Company, has donated the Kermit the Frog image to the FCC for use in a promotional campaign to bring attention to the availability of the V-Chip."
Meanwhile, Gloria Tristani's last day at the FCC is Friday, September 7. She has chaired the FCC's V-Chip Task Force since its creation in May of 1999, and has served as the FCC's spokesman for the V-Chip. See also, FCC V-Chip page.
Commissioner Tristani stated that "The critical next step for the V-Chip is creating greater awareness among parents of the V-Chip technology and the ratings system for television programming." Her replacement was not immediately available for comment.
Thursday, Sept 6
9:30 AM. The House Government Reform Committee's Technology and Procurement Policy Subcommittee will hold a hearing titled "Public Service for the 21st Century: Innovative Solutions to the Federal Government's Technology Workforce Crisis." Location: Room 2154, Rayburn Building.
9:30 AM. The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Verizon v. FCC, No. 00-1207. Judges Ginsburg, Edwards and Sentelle will preside. Location: 333 Constitution Ave., NW, Washington DC.
9:30 AM. The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in National Association of Broadcasters v. FCC, No. 00-1054. Judges Henderson, Rogers and Tatel will preside. Location: 333 Constitution Ave., NW, Washington DC.
10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. Location: Room 226, Dirksen Building.
Friday, Sept 7
9:30 AM. The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Fox v. FCC, No. 00-1222. Judges Ginsburg, Edwards and Sentelle will preside. Location: 333 Constitution Ave., NW, Washington DC.
POSTPONED. 9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet has scheduled a hearing titled "Area Code Exhaustion: Management of Our Nation’s Telephone Numbers." Location: Room 2123, Rayburn Building.
9:30 AM - 12:00 Noon. The FCC's Office of Engineering and Technology (OET) will host the first of two tutorials on new spectrally efficient techniques. Location: FCC, Commission Meeting Room, 445 12th Street, Room TW-C305, Washington DC.
1:30 - 3:00 PM. The FCC's Office of Engineering and Technology (OET) will host the second of two tutorials on new spectrally efficient techniques. Location: FCC, Commission Meeting Room, 445 12th Street, Room TW-C305, Washington DC.
Deadline to submit comments to the USPTO in response to its notice of proposed rulemaking regarding elimination of continued prosecution application practice as to utility and plant patent applications. The notice stated that the AIPA enacted provisions for the continued examination of a utility or plant application at the request of the applicant, and therefore, "there no longer appears to be a need for continued prosecution application (CPA) practice as to utility and plant applications. Thus, the Office is proposing to eliminate CPA practice as to utility and plant applications. An applicant for a utility or plant patent may also continue to effectively obtain further examination of the application by filing a continuing application under section 1.53(b). Since RCE practice does not apply to design applications, CPA practice will remain in place for design applications." See, Federal Register, July 9, 2001, Vol. 66, No. 131, at Pages 35763 - 35765.
Monday, Sept 10
9:30 AM. The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in High Plains Wireless v. FCC, No. 00-1292. Judges Ginsburg, Edwards and Sentelle will preside. Location: 333 Constitution Ave., NW, Washington DC.
First day of a two day conference hosted by the International Trademark Association (INTA) and the National Bar Association (NBA) titled "Basics of Trademark Law Forum". See, INTA brochure [PDF] for regisration information, prices, and agenda. Location: Grand Hyatt Washington, 1000 H Street NW, Washington DC.
FCC Wireless Telecommunications Bureau (WTB) fees changes go into effect. See, WTB release.
Deadline to submit comments to the FCC regarding SBC's Section 271 application to provide interLATA service in the states of Arkansas and Missouri. (CC Docket No. 01-194.) See, FCC notice [PDF].
On the Hill
9/5. The Senate Intelligence Committee cancelled its hearing on the information leak provisions of the FY 2002 Intelligence Authorization Bill.
9/4. The Senate Finance Committee reported S 643, a bill to implement the agreement establishing a U.S. Jordan free trade area. See, Rept. No. 107-59.