|Federal Circuit Rules in
Hilgraeve v. Symantec Patent Case
|9/17. The U.S.
Court of Appeals (FedCir) issued its opinion in Hilgraeve
v. Symantec, a patent infringement case
involving computer virus detection software. The Appeals Court
vacated in part, affirmed in part, and remanded.
Hilgraeve is the
holder of U.S.
Patent No. 5,319,776, titled "In transit detection of
computer virus with safeguard". Symantec provides Internet
security products, including anti virus protection products.
Hilgraeve filed a complaint in U.S.
District Court (EDMich) against Symantec alleging that its
PCAnywhere and Norton Anti Virus products infringe its '776
This patent describes a program that scans for computer
viruses. It scans a body of data during its transfer, and
before storage of the data with potential viruses on the
destination storage medium. If the program detects signs of a
virus during the scan, and the program automatically blocks
storage. Hilgraeve argued that Symantec's products screen
incoming digital data for viruses during transfer and before
"storage" on the destination storage medium.
Symantec argued its products do not infringe because they
screen the incoming digital data only after it has been
transferred and "stored" on the destination storage
Hilgraeve also filed a separate complaint against McAfee. The case also
resulted in an appeal to the Federal Circuit. The Court issued
in August, 2000. Citations: Hilgraeve v. McAfee, 70 F.
Supp. 2d 738 (E.D. Mich. 1999) and Hilgraeve v. McAfee, 224
F.3d 1349 (Fed Cir 2000).
Two issues were involved in the present appeal: claim
construction (and particularly, the meaning of the word
"storage"), and the defense that Symantec holds a
license to the '776 patent.
The District Court granted Hilgraeve's motion for summary
judgment that Symantec did not have a license to the '776
patent. The District Court granted Symantec's motion for
summary judgment of non-infringement. Hilgraeve appealed; and
Symantec cross appealed. The Federal Circuit vacated the grant
of summary judgment of non-infringement, and generally
affirmed the grant of summary judgment that Symantec did not
license the patent.
|Federal Circuit Rules on
Personal Jurisdiction in Patent Cases
|9/17. The U.S.
Court of Appeals (FedCir) issued its opinion in Pieczenik
v. Dyax, a patent infringement case in which
the issue on appeal was whether the defendant had sufficient
contacts with New York to give the U.S. District Court (SNDY)
personal jurisdiction under the applicable New York long-arm
Dyax's only contact with the State of New York was that it had
entered into a licensing agreement with a corporation
domiciled in New York. The District Court dismissed for lack
of jurisdiction. The Court of Appeals affirmed.
|7th Circuit Rules on
Copyright and Offers of Judgment
|9/17. The U.S.
Court of Appeals (7thCir) issued its opinion
Motor Company v. Arnell Chevrolet Geo, a case
involving copyright infringement, and awards of costs
and attorneys fees following rejections of offers of
One car dealer (Arnell) copied the newspaper ad of another car
dealer (Harbor). Harbor filed a complaint in U.S. District
Court (NDInd) against Arnell and the newspaper alleging
copyright infringement. The two defendants jointly made an
offer of judgment of $21,000. Harbor rejected this. The
District Court granted judgment as a matter of law to the
newspaper. The jury awarded Harbor $12,500 for its claim
against Arnell. The District Court awarded defendants costs
and attorneys fees totaling $175,000.
The Appeals Court reversed the judgment as a matter of law for
the newspaper, and hence, its award of costs and attorneys
fees. The Appeals Court also reversed the order awarding
Arnell costs and attorney's fees as the prevailing party under
FRCP 68. The Appeals Court further remanded the case to the
District Court with instructions to award Harbor its costs.
|District Court Rules in
Corel v. US
|9/17. The U.S.
District Court (DDC) issued it opinion [PDF]
v. USA, a case involving government procurement
of software. Corel filed a complaint in U.S. District Court
against the U.S. seeking declaratory and injunctive relief to
enjoin the U.S. Department of Labor (DOL) from implementing
its decision to standardize its software to Microsoft
products. The District Court denied Corel's motion for summary
judgment. It held that the DOL's procurement of Microsoft
software neither violated the applicable federal procurement
statute nor was unreasonable.
|People & Appointments
|9/17. Paul Gallant was named Special Advisor to
Kenneth Ferree, chief of the FCC's Cable Services Bureau. He
was previously a Legal Advisor on cable and broadcast issues
to former FCC Commissioner Gloria Tristani who left earlier
this month. on cable and broadcasting issues. He has also
previously worked for Qwest Communications International,
BroadBand Office, Inc., and former Commissioner James Quello.
|FBI's NIPC Warns of Cyber
|9/17. The FBI's National
Infrastructure Protection Center (NIPC) issued its Advisory
01-020 on September 14 stating that it "expects to
see an upswing in incidents as a result of the tragic events
of September 11, 2001. Increased hacking attacks are likely to
have two motivations: Political hacktivism by self-described
"patriot" hackers targeted at those perceived to be
responsible for the terrorist attacks. NIPC has already
received reports of individuals encouraging vigilante hacking
activity. Virus propagation in which old viruses are renamed
to appear related to recent events."
On September 17 the NIPC issued its Advisory
01-021 stating that it "expects an increase in
Distributed Denial of Service (DDoS) attacks." The
advisory continued that "On September 12, 2001, a group
of hackers named the Dispatchers claimed they had already
begun network operations against information infrastructure
components such as routers. The Dispatchers stated they were
targeting the communications and finance infrastructures. They
also predicted that they would be prepared for increased
operations on or about Tuesday, September 18, 2001." The
NIPC added that "The Dispatchers claim to have over 1,000
machines under their control for the attacks. It is likely
that the attackers will mask their operations by using the IP
addresses and pirated systems of uninvolved third
The NIPC concluded that "There is the opportunity for
significant collateral damage to any computer network and
telecommunications infrastructure that does not have current
countermeasures in place." The NIPC also said that
"System administrators are encouraged to check their
systems for zombie agent software and ensure they institute
best practices such as ingress and egress filtering." The
NIPC provides such software.
|IIPA Supports Trade
Promotion Authority Bill
|9/13. The International
Intellectual Property Alliance wrote a letter
[PDF] to House Rules Committee Chairman David Dreier (R-CA)
urging prompt enactment of Trade Promotion Authority (TPA),
which is also known as fast track.
It wrote that "If America's copyright industries are to
remain successful in global markets, the President, in
consultation with Congress and the private sector, must have
effective and credible authority to negotiate bilateral,
regional and multilateral trade agreements that will reduce
barriers to American creative works, and enhance intellectual
property protection and enforcement available for American
creators. Failure to grant TPA will limit our nationís
efforts to secure non-discriminatory market access and achieve
strong intellectual property rights protection and enforcement
worldwide. If Congress fails to act promptly, Americaís
ability to retain its leadership role in setting world trade
standards will be seriously jeopardized."
The signatories included the heads of the IIPA, Motion Picture
Association of America, American Publishers Association,
Business Software Alliance, Recording Industry Association of
America, and the Interactive Digital Software Association.
|Intel and Rambus Sign Cross
|9/17. Intel and Rambus released
substantially identical statements that the two companies
"signed a comprehensive patent cross-license agreement
that supersedes the prior agreement between the companies. The
new cross-license provides complete patent coverage to Intel
for all patents while providing Rambus license coverage
necessary for Rambus' high-speed interface businesses."
release and Rambus
|9/13. HR2500, the FY 2002 appropriations bill for the
Departments of Commerce, Justice, State and the Judiciary, was
passed by the Senate late on Thursday, September 13. It
provides for $1,139,001,000 in funding for the USPTO, derived
from user fees.
Smoke, Mirrors, and Diversions. The bill includes the
following language regarding USPTO funding: "For
necessary expenses of the United States Patent and Trademark
Office provided for by law, including defense of suits
instituted against the Under Secretary of Commerce for
Intellectual Property and Director of the United States Patent
and Trademark Office, $856,701,000, to remain available until
expended, which amount shall be derived from offsetting
collections assessed and collected pursuant to 15 U.S.C. 1113
and 35 U.S.C. 41 and 376, and shall be retained and used for
necessary expenses in this appropriation: Provided,
That the sum herein appropriated from the general fund shall
be reduced as such offsetting collections are received during
fiscal year 2002, so as to result in fiscal year 2002
appropriation from the general fund estimated at $0: Provided
further, That during fiscal year 2002, should the total
amount of offsetting fee collections be less than
$856,701,000, the total amounts available to the United States
Patent and Trademark Office shall be reduced accordingly: Provided
further, That an additional amount not to exceed
$282,300,000 from fees collected in prior fiscal years shall
be available for obligation in fiscal year 2002, to remain
available until expended: ..."
|9/18. TLJ published an article in the TLJ web site on
September 17 titled An
Analysis of How the Events of September 11, 2001 May Change
Federal Law. It stated, at Part IV, regarding the Export
Administration Act, that "The House passed a much
different version just before the August recess." In
fact, it was the House International Relations Committee that
passed a version of the bill. TLJ thanks readers who wrote TLJ
|Tuesday, Sept 18
|Rosh Hoshanah. The House will not be in session.
|Wednesday, Sept 19
PM. The Federal Communications
Bar Association's (FCBA) Mass Media Committee will hold a
brown bag lunch. Location: FCC Conference Room 8B-516 (Eighth
Extended deadline to submit comments to the Copyright Office (CO)
regarding the determination of reasonable rates and terms for
the digital performance of sound recordings. The CO
extended the period to file comments to proposed regulations
that will govern the RIAA collective when it functions as the
designated agent receiving royalty payments and statements of
accounts from nonexempt, subscription digital transmission
services which make digital transmissions of sound recordings
under the provisions of ß 114
of the Copyright Act. Comments and Notices of Intent to
Participate in a Copyright Arbitration Royalty Panel
Proceeding are now due by September 19. See, notice
in Federal Register, September 4, 2001, Vol. 66, No. 171, at
|Thursday, Sept 20
- 11:30 AM. The American
Enterprise Institute will present a lecture titled
"Access Pricing in Telecommunications." The speaker
will be Mark
Armstrong, a fellow in economics at Nuffield College at
Oxford University. The price for admission is $20. Location:
Wohlstetter Conference Center, American Enterprise Institute,
1150 17th Street, NW, Washington DC.
AM. The Senate
Judiciary Committee will hold a hearing "to examine instant
messaging, focusing on platforms and communications on the
Web." Location: Room 106, Dirksen Senate Office Building.
10:00 AM. The FCC's Technological Advisory Council is
scheduled to hold a meeting. Location: FCC, 445 12th Street,
SW, Room TW-C305 (Commission Meeting Room), Washington DC.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers
Committee is scheduled to host a brown bag lunch featuring FCC
Commissioner Kathleen Abernathy's Legal Advisors. No RSVP is
required. Location: Hogan
& Hartson, 555 13th St., Room 12E-407.
|Friday, Sept 21
|8:00 AM. Tom Sugrue, Chief of the FCC's Wireless Telecommunications
Bureau, is scheduled to address the Industrial
Telecommunications Associationís Private Wireless Spectrum
Management Conference and Exposition. Location: Grand Hyatt,
8:30 - 10:00 AM. Harold Furchtgott-Roth and other American Enterprise Institute
scholars will hold a press breakfast on telecommunications
issues. RSVP to Veronique Rodman, Director of Public Affairs,
AEI at 202-862-4871 or firstname.lastname@example.org.
12:00 NOON - 1:15 PM. Entrust and the Business Software Alliance will
host a luncheon titled "The Three Faces of Internet
Security: E-commerce, E-government & Cyber security".
Sen. Robert Bennett
(R-UT) will address critical infrastructure protection.
William Connor (CEO of Entrust) and Daniel Chenok (Head of
OMB's Information Technology and Policy Division) will discuss
the impact of Internet security on e-commerce, e-government
and national security. For more information, contact Caroline
Dietz at 202-715-1532 or email@example.com.
|9/13. HR 2500, as passed by the Senate on September 13,
provides $156,270,000 in funding for the Federal Trade Commission (FTC)
for FY 2002.
|About Tech Law Journal
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