Tech Law Journal Daily E-Mail Alert
April 8, 2002, 9:00 AM ET, Alert No. 405.
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Overture Sues Google for Patent Infringement
4/5. Overture filed a complaint in U.S. District Court (CDCal) against Google alleging infringement of its U.S. Patent No. 6,269,361. This 361 patent is titled "System and method for influencing a position on a search result list generated by a computer network search engine".
Overture, which was formerly known as, operates an Internet search engine which allows advertisers to bid for placement in search results. It wrote in its 2001 10-K report to the Securities and Exchange Commission, that "Overture operates an online marketplace that introduces consumers and businesses who search the Internet to advertisers that provide products, services and information. Advertisers participating in our marketplace include retail merchants, wholesale and service businesses and manufacturers. Overture facilitates these introductions through our search service, which enables advertisers to bid in an ongoing auction for priority placement in our search results after editorial approval. Priority placement means that the search results appear on the page ranked in descending order of bid price, with the highest bidder's listing appearing first. Each advertiser pays Overture the amount of its bid whenever a consumer or business clicks on the advertiser's listing in our search results."
GAO Reports on XML Use by Government
4/5. The General Accounting Office (GAO) released a report [73 pages in PDF] titled "Electronic Government: Challenges to Effective Adoption of the Extensible Markup Language".
The Extensible Markup Language (XML) is described in the report as "a flexible, nonproprietary set of standards for annotating or ``tagging´´ information so that it can be transmitted over a network such as the Internet and readily interpreted by disparate computer systems."
The report states that "While XML's technical standards -- such as specifications for tagging, exchanging, and displaying information -- have largely been worked out by commercial standards setting organizations and are already in use, equally important business standards are not as mature and may complicate nearterm implementation. For example, standards are not yet complete for (1) identifying potential business partners for transactions, (2) exchanging precise technical information about the nature of proposed transactions so that the partners can agree to them, and (3) executing agreed upon transactions in a formal, legally binding manner. Many standards setting organizations in the private sector are creating various XML business standards, and it will be important for the federal government to adopt those that achieve widespread acceptance. However, it is not yet clear which business standards meet this criterion."
The report further finds that "No explicit governmentwide strategy for XML adoption has been defined to guide agency implementation efforts and ensure that agency enterprise architectures address incorporation of XML" and that the "needs of federal agencies have not been uniformly identified and consolidated so that they can be represented effectively before key standards setting bodies." Also, the report finds that the "government has not yet established a registry of government unique XML data structures (such as data element tags and associated data definitions) that system developers can consult when building or modifying XML based systems."
The report recommends that "Given the statutory responsibility of OMB to develop and oversee governmentwide policies and guidelines for agency IT management, we recommend that the director of OMB, working in concert with the federal CIO Council and NIST, develop a strategy for governmentwide adoption of XML to guide agency implementation efforts and ensure that the technology is addressed in agency enterprise architectures."
The report further recommends that this strategy should develop "a process with defined roles, responsibilities, and accountability for identifying and coordinating government unique requirements and presenting consolidated, focused input to private sector standards setting bodies during the development of XML standards." The report also recommends that the strategy should develop "a project plan for transitioning the CIO Council's pilot XML registry effort into an operational governmentwide resource." Finally, the report recommends that this strategy should develop "policies and guidelines for managing and participating in the governmentwide XML registry, once it is operational, to ensure its effectiveness in promoting data sharing capabilities among federal agencies."
Sen. Joe Lieberman (D-CT), Chairman of the Senate Governmental Affairs Committee, requested the report. David McClure, the GAO's Director of Information Technology Management Issues, wrote the report. See, also, the World Wide Web Consortium's (W3C) XML web page.
USTR Releases Report on Barriers to Trade
4/2. The U.S. Trade Representative (USTR) issued its annual report titled "2002 National Trade Estimate Report on Foreign Trade Barriers". See also, USTR release.
This report details on a nation by nation basis, among other things, the extent of protection of intellectual property rights; tariff barriers to the import of semiconductors, computers, computer parts, software, and telecommunications equipment; regulation of Internet content, ISPs, encryption, and e-commerce; and dominant telecom carrier protection by national regulators.
See, in particular, the report's chapter [35 pages in PDF] on the European Union, chapter [29 pages in PDF] on the People's Republic of China, chapter [45 pages in PDF] on Japan, and chapter [9 pages in PDF] on Mexico. However, the USTR report contains no chapter summarizing barriers to trade imposed by the United States.
USTR Robert Zoellick stated in a release that "By identifying barriers to trade, we can work with our trading partners, globally, regionally, and bilaterally, to eliminate these barriers, while further liberalizing our market at home. Trade improves the economic well being of Americans, advances freedom around the world, and promotes our nation's security."
People and Appointments
4/5. Federal Communications Commission (FCC) Chairman Michael Powell designated FCC Commissioner Kevin Martin to be chairman of the of the Federal State Joint Conference on Advanced Telecommunications Services. See, FCC release [PDF].
4/1. Rep. Bob Goodlatte (R-VA) named Elyse Bauer his new press secretary. She was previously Deputy Press Secretary to Rep. Frank Wolf (R-VA). She replaces Janet Polarek who has returned to Lynchburg, Virginia. See, Goodlatte release.
1st Circuit Rules in Cellular Roaming Dispute
4/5. The U.S. Court of Appeals (1stCir) issued its opinion in Movistar v. Sprint, a dispute pertaining to a wireless communications roaming agreement. The Appeals Court reversed a District Court preliminary injunction against Sprint.
Background. Sprint is a large telecommunications carrier with wireless customers throughout the United States. Movistar is a small local carrier with approximately 190,000 customers in Puerto Rico. Sprint and Movistar signed the roaming agreement in 1999. Movistar had little understanding of Signal IDs (SIDs) and Preferred Roaming List (PRLs), which are essential to the operation of wireless networks. The PRL is a computer program installed in the subscriber's handset so that the handset will search for known SIDs in rank order and connect to the first available signal. Movistar relied upon Sprint and its handset manufacturer to write and install the PRL.
In short, Sprint wrote a PRL for Movistar which included Sprint's Virgin Islands SID (5142) in the Puerto Rico basic trading area (BTA). When Sprint subsequently initiated service in Puerto Rico, using the 5142 SID, this caused many Movistar subscribers, when calling within Puerto Rico, to roam onto the Sprint network, and incur higher charges.
District Court. Movistar filed a complaint in U.S. District Court (DPR) against Sprint alleging tortious interference with the contractual relationship between Movistar and its subscribers, and violation of a good faith covenant contained in the roaming agreement. Federal jurisdiction is based upon diversity of citizenship. The applicable law is that of Puerto Rico. The District Court issued a preliminary injunction against Sprint barring it from broadcasting the 5142 SID in Puerto Rico.
Appeals Court. The Appeals Court reversed, on the basis that Movistar had not demonstrated a likelihood of success on the merits. However, it added that "Movistar may ultimately succeed on some or all of its claims once the evidence is fully developed".
Federal Circuit Opinions
4/2. The U.S. Court of Appeals (FedCir) issued its opinion in Enzo Biochem v. Gen-Probe, a patent infringement case. Enzo Biochem is the assignee of U.S. Patent No. 4,900,659, which is directed to nucleic acid probes that selectively hybridize to the genetic material of the bacteria that cause gonorrhea. Enzo filed a complaint in U.S. District Court (SDNY) against Gen-Probe and others alleging patent infringement. The District Court granted defendants' motion for summary judgment that claims 1-6 of the 659 patent are invalid for failure to meet the written description requirement of 35 U.S.C. § 112. The Appeals Court affirmed, 2-1.
4/2. The U.S. Court of Appeals (FedCir) issued its opinion in Griffin v. Bertina, an appeal from the decision of the U.S. Patent and Trademark Office Board of Patent Appeals and Interferences awarding judgment in an interference to the senior party, Bertina. The Appeals Court affirmed.
4/2. The U.S. Court of Appeals (FedCir) issued its opinion in Leggett & Platt v. Hickory Springs, a patent infringement and misappropriation of trade secrets case. Leggett & Platt (L&P) is the assignee of U.S. Patent No. 5,052,064, titled "Stackable bedding foundation". L&P filed a complaint in U.S. District Court (NDIll) against Hickory Springs alleging patent infringement, inducing third parties to infringe, tortious interference with contract, and misappropriation of trade secrets. The District Court ruled that Hickory did not infringe the patent, either literally, or under the doctrine of equivalents. It also held that Hickory did not misappropriate trade secrets. The Appeals Court affirmed in part (literal infringement), and reversed in part (doctrine of equivalents and misappropriation of trade secrets), on the grounds that material issues of fact exist.
4/3. The U.S. Court of Appeals (FedCir) issued its opinion in Ecolab v. Paraclipse, a patent infringement case. Ecolab filed a complaint in U.S. District Court (DNeb) against Paraclipse alleging infringement of its U.S. Patent No. 5,365,690 titled "Flying insect trap using reflected and radiated light. The jury returned a verdict of noninfringement. The Appeals Court affirmed in part, reversed in part, and remanded for a new trial.
More News
4/4. Commerce Secretary Donald Evans announced that representatives of 15 companies will join him on a business development mission to Beijing and Shanghai, China, on April 21-25. Several tech companies will send representatives including Applied Materials (EVP David Wang), Borland Software (SVP/GC Keith Gottfried), Lucent (James Brewington), and Motorola (EVP Robert Barnett). See, release.
4/5. The Recording Industry Association of America (RIAA) stated that "its physical anti-piracy efforts in 2001 led to a record number of arrests, raids, illegal product seizures, guilty pleas and convictions." It stated that in 2001 more than 230 distribution operations were raided, up from approximately 100 in 2000. Similarly, it stated that more than 145 manufacturing operations were raided, up from approximately 50 in 2000. It also stated that number of search warrants issued was up 74%. See, RIAA release.
4/5. The Treasury Department extended the deadline for submitting comments regarding its study of information sharing practices among financial institutions and their affiliates, to May 1, 2002. See, notice in Federal Register, April 5, 2002, Vol. 67, No. 66, at Page 16488.
4/5. Ed Black, P/CEO of the Computer & Communications Industry Association (CCIA), criticized the U.S. Postal Service's ongoing e-commerce activities at a press conference in Washington DC. He stated that "the rapid growth of e-commerce has enticed Federal and State governments to view the Internet and e-commerce as a new platform for government provided products and services the directly compete against the private sector. CCIA cannot countenance the government as a competitor in nascent or even thriving private sector commercial markets." The other participants included Leslie Paige (CAGW), Rick Merritt (PostalWatch), Pete Sepp (National Taxpayers Union), Rob Fike (Americans for Tax Reform), Ed Hudgins (Objectivist Center), and Jason Thomas (Citizens for a Sound Economy). See also, CCIA release.
The article titled "District Court Orders DOJ to Expand Its Search for Carnivore Records", TLJ Daily E-Mail Alert No. 397, March 27, 2002, contains a hyperlink to the March 25 Memorandum Order issued by the U.S. District Court (DC) in EPIC v. DOJ, a Freedom of Information Act (FOIA) suit regarding records pertaining to the FBI's e-mail surveillance system known as Carnivore. The Order was transcribed by TLJ from the Court's file, and published in the TLJ web site. TLJ made an error in transcribing this Order. The error has been corrected.
Monday, April 8
The Senate will return from its Spring District Work Period. It is scheduled to meet at 3:00 PM. The House will not be in session.
The Supreme Court of the U.S. is on recess until Monday, April 15.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Morris Communications v. FCC, No. 01-1123. Judges Edwards, Tatel and Silberman will preside. Location: 333 Constitution Ave. NW.
Tuesday, April 9
The House will return from its Spring District Work Period. It will meet at 2:00 PM for legislative business to consider a number of measures under suspension of the rules.
8:30 AM. The Global Information Infrastructure Committee will hold a meeting regarding Internet use in China. For more information, contact Robert Rogers at rrogers or 202 261-6572. Location: Winner's Room, National Press Club, 529 14th St. NW, 13th Floor.
2:00 PM. The House Financial Services Committee will hold another hearing on HR 3763, the Corporate and Auditing Accountability, Responsibility, and Transparency Act of 2002. Location: Room 2128, Rayburn Building.
4:00 PM. Margo Bagley (Emory University School of Law) will give a lecture titled "Patently Unconstitutional: Geographic Limitations on Prior Art in a Small World". For more information, contact Robert Brauneis at rbraun or 202 994-6138. Location: George Washington University Law School, 2000 H Street, NW.
Wednesday, April 10
The House will meet at 10:00 AM for legislative business. It may take up HR 3925, The Digital Technology Corps Act of 2002.
10:00 AM. The House Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget for FY 2003 for the FTC. Location: Room H-309, The Capitol.
10:00 AM - 12:00 NOON. The AEI Brookings Joint Center for Regulatory Studies will host a panel discussion titled Microsoft: Making the Punishment Fit the Crime. The participants will be Robert Hahn (AEI Brookings), Robert Litan (AEI Brookings), George Priest (Yale Law School), Steve Salop (Georgetown Law Center), and Richard Schmalensee (MIT Sloan School of Management). See, online registration page. Location: AEI, 12th Floor, 1150 17th Street, NW.
10:30 AM. The Senate Judiciary Committee's Subcommittee on Antitrust, Competition, and Business and Consumer Rights will hold a hearing titled "Dominance on the Ground: Cable Competition and the ATT Comcast Merger". Sen. Herb Kohl (D-WI) will preside.
12:00 NOON. The Congressional Internet Caucus Advisory Committee will host a luncheon panel discussion on the use of e-learning to train workers. The scheduled participants include Sen. Conrad Burns (R-MT), Rep. Johnny Isakson (R-GA), Jerry Berman (Internet Education Foundation), Rich Moran (Accenture), Daniel Hamburger (Indeliq), Greg Priest (SmartForce), and retired Brig. Gen. Frank Anderson (Defense Acquisition University). RSVP to RSVP or call Danielle at 202 637-4370. Location: Reserve Officers Association, 1st and Constitution Ave., NW.
Thursday, April 11
The House will meet at 10:00 AM for legislative business.
9:30 AM. The House Financial Services Committee will hold a meeting to mark up several bills, including HR 3763, the Corporate and Auditing Accountability, Responsibility, and Transparency Act of 2002, and HR 3764, a bill to authorize appropriations for the SEC. Location: Room 2128, Rayburn Building.
10:00 AM. The House Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget for FY 2003 for the Office of Homeland Security. Location: Room 2359, Rayburn Building.
10:00 AM. The House Ways and Means Committee's Subcommittee on Trade will hold a hearing on normal trade relations with Russia. Location: Room 1100, Longworth Building.
11:00 AM. The Cato Institute will host a book forum on Free Trade under Fire [Amazon], by Douglas Irwin, Professor of Economics at Dartmouth. The speakers will be Irwin, Robert Litan (Brookings) and Steve Clemons (New America Foundation). Lunch will follow. See, CATO notice. Location: 1000 Massachusetts Ave., NW.
12:00 NOON - 1:30 PM. The Business Software Alliance will host its 5th Annual "Talking Technology" forum luncheon. Mark Forman, Associate Director for Information Technology and E-Government with the Office of Management and Budget, will speak. RSVP to Jeri Clausing at 202 530-5127 or jeric Location: Reserve Officers Assoc., One Constitution Ave., NE.
Friday, April 12
The House will not be in session.
10:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will hold a panel discussion titled Is Open Source the Future of Software? The participants will be Robert Hahn (AEI Brookings), James Bessen (Research on Innovation), David Evans (NERA), Lawrence Lessig (Stanford), and Brad Smith (Microsoft). See, AEI online registration page. Location: AEI, 1150 17th St., NW.
10:00 AM - 12:00 NOON. The National Commission on Libraries and Information Science (NCLIS) will hold an open business meeting. See, notice in Federal Register. Location: NCLIS, 1110 Vermont Ave., NW, Suite 820.
The FCBA will host a luncheon. The speaker will be Nancy Victory, Director of the NTIA. RSVP to Wendy Parish at wendy by Tuesday, April 9, at 5:00 PM.
Deadline to submit comments to the FCC regarding its annual report to Congress regarding progress made in achieving the objectives of the Open Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act), 47 U.S.C. § 646. The next FCC Orbit Act report is due to Congress on June 15, 2002. See, FCC notice [PDF].
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