|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
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
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
|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
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
|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.
|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 -
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
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
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|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
-- 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
-- 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 (Privacilla.org),
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 firstname.lastname@example.org.
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
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,
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 email@example.com. 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
@aei.org. 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
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
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
RESCHEDULED FOR FEB 12.
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.