Tech Law Journal Daily E-Mail Alert
January 31, 2002, 9:00 AM ET, Alert No. 358.
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Antitrust Regulators to Hold Hearings on Intellectual Property
1/30. The Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) will hold a series of joint hearings on antitrust and intellectual property. The hearings are titled "Competition and Intellectual Property Law and Policy in the Knowledge Based Economy".
The opening hearing will be on February 6 at 2:00 PM at the FTC's main building in Washington DC. It will feature addresses by current and former government officials. The speakers at this event will be Timothy Muris (FTC Chairman), Charles James (Assistant Attorney General for the Antitrust Division), James Rogan (Director of the USPTO), Pauline Newman (Judge of the U.S. Court of Appeals for the Federal Circuit), Robert Pitofsky (Professor at Georgetown University Law Center), Todd Dickinson (Howrey Simon), Gerald Mossinghoff (Oblon Spivak), Richard Gilbert (Professor at U.C. Berkeley), and Richard Levin (President of Yale).
On February 8, there will be two concurrent sessions in the morning at the FTC, titled "Patent Law for Antitrust Lawyers" and "Antitrust Law for Patent Lawyers". On February 20, there will be a day long set of sessions at the FTC titled "Economic Perspectives on Intellectual Property, Competition and Innovation".
The series will continue at the Haas School of Business at the University of California at Berkeley on February 25-28. The title of these sessions will be "Business and Economic Perspectives on Real World Experience with Patents". Finally, on March 19-20, there will be sessions back at the FTC titled "Business and Other Perspectives on Real World Experience with Patents". See, FTC release and DOJ release.
William Kolasky, Deputy Assistant Attorney General for the Antitrust Division, gave a speech on January 25 in which he discussed this series of hearings. He stated that "We will invite interested businesses, consumers, legal practitioners, academics, and government agencies to participate in discussions covering a broad range of topics, including: the importance of intellectual property to businesses and innovation; competitive issues raised by the type and scope of patents issued, as well as by the procedures and criteria used during the patent examination process; the licensing of intellectual property; standard setting; competitive concerns raised by the settlement of patent disputes; comparative international treatment of many of these issues; and the role of the U.S. Court of Appeals for the Federal Circuit in developing antitrust law."
Kolasky also stated that the hearings will address "whether and, if so, under what circumstances, a refusal to license intellectual property might give rise to an antitrust violation". He added that the hearings will address "how our approach compares to that of the EU and our other major trading partners. Recently, for example, the European Commission appears to be taking a more expansive view than we do of the essential facilities doctrine, especially as it applies to intellectual property. In the United States, we have generally applied the essential facilities doctrine much more narrowly, believing that its overuse might reduce incentives to innovate and invest."
Fed Circuit Rules on Breach of Duty to Assign Patent Applications
1/30. The U.S. Court of Appeals (FedCir) issued its opinion in University of West Virginia v. VanVoorhies, a case regarding breach of duty to assign patent applications by university students and professors.
Kurt VanVoorhies was a graduate student in engineering, and later post graduate research assistant professor, at the University of West Virginia (UWV). UWV had a policy that provided that UWV "owns worldwide right, title and interest in any invention made at least in part by University personnel, or with substantial use of University resources ..." Moreover, VanVoorhies and a UWV professor executed a patent application in 1992. They assigned all rights to the UWV. The written assignment also covered continuation in part (CIP) applications relating to the invention.
VanVoorhies later executed a second patent application in which he claimed himself as the sole inventor, and a company owned by him as assignee. The patent applications pertained to antennae for wireless power transmission.
WVU sued VanVoorhies in 1997 in U.S. District Court (NDWV) alleging that VanVoorhies breached his duty to assign the second invention to WVU. VanVoorhies filed various counterclaims, including fraud, breach of fiduciary duty, breach of contract, invalid assignment, and RICO. The District Court granted WVU summary judgment that VanVoorhies breached his duty to assign to WVU; it also granted WVU summary judgment on VanVoorhies' counterclaims.
The Appeals Court held that the second application was a continuation in part of the first application, and that VanVoorhies had a duty to assign it. Affirmed.
ACT Submits Comments on Microsoft Settlement
1/28. The Association for Competitive Technology (ACT) submitted a comment [PDF] in support of the Proposed Final Judgment (PFJ) filed with U.S. District Court (DC) in the case U.S. v. Microsoft. It states that the PFJ "prevents Microsoft from engaging in exclusionary or retaliatory tactics, as well as foreclosing a number of more specific paths to unfair competition. However, it is carefully crafted to ensure that Windows will remain available to consumers as a reliable operating platform."
ACT also stated that "many of the Litigating States' proposals seem to have been designed by Microsoft’s competitors. Indeed, the companies that will benefit most from the Litigating States' efforts are the same ones that have led the campaign to scuttle settlement efforts in this case and to impose far-reaching restrictions on Microsoft: AOL Time Warner, Sun Microsystems, Oracle, IBM, and Apple."
People and Appointments
1/29. IBM's Board of Directors elected Samuel Palmisano CEO, effective March 1. He is currently President and Chief Operating Officer. He will remain as President. He will replace Louis Gerstner, who will remain IBM Chairman through the end of 2002. In addition, John Thompson, IBM Vice Chairman, will retire from the company and board on September 1. See, IBM release.
Sen. Edwards Introduces Bills to Fight Cyber Jihad
1/28. Sen. John Edwards (D-NC) introduced S 1900, the Cyberterrorism Preparedness Act of 2002, and S 1901, the Cybersecurity Research and Education Act of 2002. Sen. Edwards stated that "we must be prepared to fight against a cyberjihad."
S 1900 would authorize the appropriation of $70 Million in FY 2003 for grants to be administered by the National Institute of Standards and Technology (NIST) "to support the development of appropriate cybersecurity best practices, support long-term cybersecurity research and development, and perform functions relating to such activities." S 1901 would authorize appropriations for a cybersecurity graduate fellowship program, and other educational programs.
Sen. Edwards spoke in the Senate in support of his bills. He stated that "there is a dark side to the internet, a new set of dangers. Today, if you ask an expert quietly, he or she will tell you that cyberspace is a very vulnerable place. Terrorists could cause terrible harm. They might be able to stop all traffic on the internet. Shut down power for entire cities for extended periods. Disrupt our phones. Poison our water. Paralyze our emergency services--police, firefighters, ambulances. The list goes on. We now live in a world where a terrorist can do as much damage with a keyboard and a modem as with a gun or a bomb."
He added that "cybercrime is already a billion dollar drain on our economy, a drain growing larger each year."
He also said that The Cyberterrorism Preparedness Act will address the first goal of cybersecurity -- making sure we're taking the steps we already know to improve our security. The second bill I am introducing today -- the Cybersecurity Research and Education Act -- focuses on our second task: ``training the trainers´´ and increasing the number of researchers, teachers, and workers committed to cybersecurity."
Sen. Kyl Criticizes Export Administration Act
1/29. Sen. Jon Kyl (R-AZ) spoke in the Senate about the S 149, the Export Administration Act of 2001, and the PR China's use of foreign technology to modernize its military. He stated that it is "China's primary objective in acquiring these and other military technologies, to be able to defeat our long standing, democratic ally Taiwan in a conflict quickly enough to prevent American military intervention."
Sen. Kyl continued that "S 149 was approved despite serious concerns of some, including myself, that the U.S. export control process is ineffective in stopping the export of militarily sensitive technologies to countries, like China, that pose a potential military threat to the United States or to U.S. interests abroad. S 149, if enacted into law, would allow China to import even more sensitive technology than it has in the past. It would decontrol a number of dual use technologies, including items used to make nuclear weapons and long range missiles."
S 149 would modernize export control laws. It would ease restraints on most dual use products, such as computers and software, but increase penalties for violations. The Bush Administration has endorsed it. The Senate passed it by a vote of 85 to 14, five days before the terrorist attacks of September 11, over the opposition of a small group of Senators who asserted that it would harm national security. See, Roll Call No. 275. The House International Relations Committee passed a much different version just before the August 2001 recess.
More News
1/30. The Copyright Office published a notice in the Federal Register announcing "the initiation of the voluntary negotiation period for determining reasonable rates and terms for two compulsory licenses, which in one case, allows public performances of sound recordings by means of eligible nonsubscription transmissions, and in the second instance, allows the making of an ephemeral phonorecord of a sound recording in furtherance of making a permitted public performance of the sound recording." See, Federal Register, January 30, 2002, Vol. 67, No. 20, at Pages 4472 - 4474.
1/30. The Securities and Exchange Commission (SEC) announced that it has developed a series of fake investment scam web sites that are "designed to warn investors who rush into investment opportunities on the Internet without fully investigating the offers." See, SEC release.
1/30. The U.S. Patent and Trademark Office (USPTO) announced that "An examination for persons seeking registration before the United States Patent and Trademark Office as patent attorneys and agents will be held on Wednesday, October 16, 2002, pursuant to the provisions of 37 CFR §§ 10.5, 10.6, and 10.7. The deadline for filing applications along with the $40.00 non-refundable application fee and the $310.00 examination fee and all necessary showings required by 37 CFR §§ 10.7(a) and (b) is Friday, July 5, 2002." See, USPTO notice.
1/30. U.S. Trade Representative (USTR) Robert Zoellick and Australian Minister of Trade Mark Vaile met. The office of the USTR released a statement in which it said that the two "considered how they might advance the proposal for a possible free trade agreement (FTA) between the United States and Australia. They discussed how an FTA could contribute to their shared goals of achieving open markets globally in the WTO's Doha Development Agenda and in the Asia-Pacific region. They directed their staffs to examine the elements of a possible FTA and to provide the results of this work in the coming months." See, USTR release
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Notices & Disclaimers

Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All rights reserved.
Thursday, Jan 31
The House will not be in session. (The Republican retreat is being held on January 30 and 31.)
Day two of the 2nd Annual Privacy & Data Security Summit, sponsored by the International Association of Privacy Officers. See, online brochure [PDF]. Location: Hyatt Regency Washington, 400 New Jersey Ave., NW, Washington DC. Highlights include the following:
 -- 8:15 AM. Howard Beales (FTC's Bureau of Consumer Protection) will speak on "Privacy Regulation and the Federal Trade Commission".
 -- 8:45 AM. Phillip Bond (Undersecretary for Technology, Department of Commerce) will speak on "Privacy and Commerce".
 -- Amy Friend (Office of the Comptroller of the Currency) will speak on "Privacy and Financial Affairs".
 -- 9:45 AM. Kathleen Fyffe (HHS Department) will speak on "Healthcare Privacy, Security and HIPAA Compliance".
10:15 AM. Daniel Collins (Justice Dept.) will speak on "Prosecuting Privacy Violations".
 -- 12:30 PM. Keynote Panel titled "Privacy in America Following the Terrorist Attacks on the World Trade Center and the Pentagon". The participants will be Agnes Scanlan (FleetBoston Financial), Gary Clayton (Privacy Council), James Harper (, John Kamp (Wiley Rein & Fielding), Mark Rotenberg (EPIC), David Stampley (Office of the NY Attorney General), Zoe Strickland (USPS), Bruce Johnson (Davis Wright Tremaine).
10:00 AM - 12:00 NOON. The ITAA Telecommunications Committee will meet. For more information, contact Thomas Vincent at Location: ITAA, 1401 Wilson Blvd., Suite 1100, Arlington, VA.
11:00 AM. James Rogan, Director of the USPTO, will hold a press teleconference to unveil highlights of the USPTO's FY 2003 budget request. Reporters may call 1-800-857-4864 code 26864 by 10:55 AM to participate. See, USPTO release.
12:30 PM. John Browne, the Director of the Los Alamos National Laboratories, will speak at a luncheon. Location, Ballroom, National Press Club, 529 14th St. NW, 13th Floor.
12:30 - 2:00 PM. The FCBA's International Practice Committee will host a brown bag lunch with FCC Commissioner Kathleen Abernathy. Location: FCC, 445 12th St, SW, 8th Floor, Conference Room 1.
1:00 - 3:30 PM. The FCC's WRC-03 Advisory Committee, Informal Working Group 7: Regulatory Issues and Future Agendas, will meet. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.
7:00 - 8:00 PM. There will be a panel discussion titled "The State of Online Journalism" featuring Rich Jaroslovsky (Wall Street Journal) and Doug Feaver (Washington Post). Location: National Press Club, 529 14th St. NW, 13th Floor.
Friday, Feb 1
The House will meet at 10:00 AM in pro forma session only.
Day three of the 2nd Annual Privacy & Data Security Summit, sponsored by the International Association of Privacy Officers. See, online brochure [PDF]. Location: Hyatt Regency Washington, 400 New Jersey Ave., NW.
12:30 PM. The FCBA will host a luncheon. The speaker will be FCC Commissioner Kevin Martin. There will be a reception at 12:00 NOON. The price to attend is $45 for FCBA members, $35 for government and law student members, and $55 for non-members. Registrations and cancellations due by 5:00 PM on Tuesday, January 29. To register, contact Wendy Parish at Location: Capital Hilton Hotel, 16th & K Streets NW.
12:30 - 2:00 PM. Harold Furchtgott Roth will give a speech titled "A Tough Act to Follow: The Telecommunications Act of 1996". To register, contact Linzey Powers at lpowers Location: American Enterprise Institute, Twelfth floor, 1150 17th St., NW.
Deadline to submit comments to the FEC in response to its requests comments on the second draft of the revisions to the 1990 national voluntary performance standards for computerized voting systems and the first draft of the revisions to the 1990 national test standards. See, notice in Federal Register.
12:00 NOON. Extended deadline to submit comments to the Office of the USTR regarding the operation and effectiveness of the WTO Basic Telecommunications Agreement, the telecommunications provisions of the NAFTA, and other telecommunications trade agreements. This request for comments is pursuant to an annual review of telecom agreements required by Section 1377. The original notice set January 28 as the deadline. A supplemental notice extended the deadline to February 1.
Monday, Feb 4
9:00 AM. The Cato Institute will release a study titled "The Digital Dirty Dozen" which lists and evaluates the worst high tech legislative proposals of this Congress. The speakers will be Wayne Crews and Adam Thierer. This study will be released at an invitation only press breakfast. For more information, contact Jerry Brito at 202-218-4621. Location: Cato, 1000 Mass. Ave., NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Telecom Technical Services v. Siemens Rolm. Plaintiffs sued Seimens Rolm alleging violation of federal antitrust laws; they alleged monopolization of alleged markets for telecommunications equipment; they also sought class action status. Seimens asserted various counterclaims, including patent infringement. The U.S. District Court (NDGa) denied class action status. (This is Appeals Court No. 01-5090 and D.C. No. 95-CV-549-WBH.) Location: Courtroom 201, 717 Madison Place, NW.
Deadline to submit petitions and comments to the FCC's Cable Services Bureau regarding the applications of Hughes Electronics and EchoStar Communications to the FCC requesting consent to the transfer of control of licenses and authorizations involved in the EchoStar DirecTV merger. See, FCC notice [MS Word]. Oppositions and responses are due by February 25, 2002. This is CS Docket No. 01-348.
Tuesday, Feb 5
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in EchoStar v. FCC, No. 01-1032. Judges Ginsburg, Edwards and Sentelle will preside.
RESCHEDULED FOR FEB 12. 12:15 PM. The FCBA's Transactional Practice Brown Committee will host a brown bag lunch on wireless transactions.
1:30 PM. The U.S. International Telecommunication Advisory Committee (ITAC) will hold a meeting. See, notice in Federal Register. Location: State Dept.
2:30 PM. The Senate Finance Committee will hold a hearing to hear testimony on the President's FY 2003 budget and tax proposals. Treasury Secretary Paul O'Neill will testify. Location: Room 215, Dirksen Building.
4:00 PM. The Cato Institute will host a book forum on Against the Dead Hand: The Uncertain Struggle for Global Capitalism [Amazon], by Brink Lindsey (Cato Institute). The commenters will be Robert Zoellick (U.S. Trade Representative), Sebastian Mallaby (Washington Post), and Douglas Irwin (Dartmouth University). See, online information and registration page. Location: The Cato Institute, 1000 Mass. Ave., NW.
Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for planning and construction grants for public telecommunications facilities under the Public Telecommunications Facilities Program (PTFP) for FY 2002. See, notice in Federal Register.