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May 29, 2002, 9:00 AM ET, Alert No. 439.
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Supreme Court Reverses in Festo Case
5/28. The Supreme Court issued its opinion [PDF] in Festo v. Shoketsu Kinzoku Kogyo Kabushiki, a patent case regarding the doctrine of equivalents and the rule of prosecution history estoppel. The unanimous Supreme Court reversed the Court of Appeals and remanded. The Court again affirmed the doctrine of equivalents, articulated its purpose, held that the narrowing of a patent claim may give rise to prosecution history estoppel (but that it does not absolutely bar application of the doctrine of equivalents), and listed circumstances under which it might or might not operate as a bar.
This is a nearly decade old legal dispute over the extent of patent protection to be afforded to the holder of two patents pertaining to magnetic cylinder technology. However, there are broad ramifications for many other patent holders, and producers of items similar to those described in these patents.
Complaint. The Festo Corporation is the owner of U.S. Patent No. 4,354,125 and U.S. Patent No. B1 3,779,401. During the prosecution of these patents before the U.S. Patent and Trademark Office (USPTO), Festo amended its applications. Shokestsu later sold products similar, but not identical, to those disclosed in Festo's patents. Festo filed a complaint in the U.S. District Court (DMass) against Shoketsu alleging infringement of its two patents, under the doctrine of equivalents.
Doctrine of Equivalents. The doctrine of equivalents provides that a product or process that does not literally infringe upon the express terms of a patent claim may nevertheless be found to infringe if there is an equivalence between the elements of the accused product or process and the claimed elements of the patented invention. That is, as the Supreme Court stated, "a patent protects its holder against efforts of copyists to evade liability for infringement by making only insubstantial changes to a patented invention."
The Supreme Court recently affirmed the doctrine. Justice Thomas wrote in Warner Jenkinson v. Hilton Davis Chemical, 520 U.S. 17 (1997), that this doctrine provides that "a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is ``equivalence´´ between the elements of the accused product or process and the claimed elements of the patented invention." See also, Graver Tank v. Linde Air Products, 339 U.S. 605 (1950).
The doctrine of equivalents is not codified in the Patent Act. However, as the Court noted in Warner Jenkinson, "Congress can legislate the doctrine of equivalents out of existence any time it chooses."
Prosecution History Estoppel. The rule of prosecution history estoppel provides that in determining the range of equivalents, the Court may consider the history of the patent application before the USPTO. That is, as the Supreme Court stated, the USPTO "may have rejected an earlier version of the patent application on the ground that a claim does not meet a statutory requirement for patentability. ... When the patentee responds to the rejection by narrowing his claims, this prosecution history estops him from later arguing that the subject matter covered by the original, broader claim was nothing more than an equivalent."
Case History. The District Court found infringement. The U.S. Court of Appeals (FedCir) affirmed the judgment of the District Court. The Supreme Court granted certiorari, vacated, and remanded to the Court of Appeals decision in light of Warner Jenkinson. A three judge panel of the Appeals Court affirmed in part and vacated and remanded in part the judgment of the District Court. An en banc panel of the Appeals Court issued its divided opinion on November 20, 2000, reversing the District Court judgment of infringement. The Appeals Court en banc held that an estoppel arises from any amendment that narrows a claim to comply with the Patent Act, not only from amendments made to avoid prior art. In addition, it held that when estoppel applies, it stands as a complete bar against any claim of equivalence for the element that was amended.
The Supreme Court again granted certiorari. The Solicitor General submitted an amicus curiae brief arguing that the Appeals Court correctly ruled that a patent claim amendment that narrows the scope of a claim gives rise to prosecution history estoppel, but the Court erred in holding that prosecution history estoppel completely precludes application of the doctrine of equivalents. The Supreme Court heard oral argument on January 7, 2002. See, transcript [PDF].
Supreme Court. Justice Anthony Kennedy wrote the opinion for a unanimous Court. He began by observing that "The language in the patent claims may not capture every nuance of the invention or describe with complete precision the range of its novelty. If patents were always interpreted by their literal terms, their value would be greatly diminished. Unimportant and insubstantial substitutes for certain elements could defeat the patent, and its value to inventors could be destroyed by simple acts of copying."
The Court acknowledged that "the doctrine of equivalents renders the scope of patents less certain. It may be difficult to determine what is, or is not, an equivalent to a particular element of an invention." However, it added that these concerns "are not new", and the Court has continuously upheld the doctrine.
The Court held that "Prosecution history estoppel requires that the claims of a patent be interpreted in light of the proceedings in the PTO during the application process. Estoppel is a ``rule of patent construction´´ that ensures that claims are interpreted by reference to those ``that have been cancelled or rejected.´´ ... The doctrine of equivalents allows the patentee to claim those insubstantial alterations that were not captured in drafting the original patent claim but which could be created through trivial changes. When, however, the patentee originally claimed the subject matter alleged to infringe but then narrowed the claim in response to a rejection, he may not argue that the surrendered territory comprised unforeseen subject matter that should be deemed equivalent to the literal claims of the issued patent." (Citations omitted.)
The Court reasoned that "A rejection indicates that the patent examiner does not believe the original claim could be patented. While the patentee has the right to appeal, his decision to forgo an appeal and submit an amended claim is taken as a concession that the invention as patented does not reach as far as the original claim."
The Court then addressed what kinds of amendments that may give rise to estoppel. It held that "Estoppel arises when an amendment is made to secure the patent and the amendment narrows the patent's scope. If a § 112 amendment is truly cosmetic, then it would not narrow the patent's scope or raise an estoppel. On the other hand, if a § 112 amendment is necessary and narrows the patent's scope -- even if only for the purpose of better description -- estoppel may apply. A patentee who narrows a claim as a condition for obtaining a patent disavows his claim to the broader subject matter, whether the amendment was made to avoid the prior art or to comply with § 112. We must regard the patentee as having conceded an inability to claim the broader subject matter or at least as having abandoned his right to appeal a rejection. In either case estoppel may apply."
The Court next addressed whether an estoppel bars the inventor from asserting infringement against any equivalent to the narrowed element or might some equivalents still infringe. The Court rejected the complete bar approach of the en banc Court of Appeals.
The Court wrote that the prosecution history estoppel "requires an examination of the subject matter surrendered by the narrowing amendment. ... The narrowing amendment may demonstrate what the claim is not; but it may still fail to capture precisely what the claim is. There is no reason why a narrowing amendment should be deemed to relinquish equivalents unforeseeable at the time of the amendment and beyond a fair interpretation of what was surrendered. Nor is there any call to foreclose claims of equivalence for aspects of the invention that have only a peripheral relation to the reason the amendment was submitted. The amendment does not  show that the inventor suddenly had more foresight in the drafting of claims than an inventor whose application was granted without amendments having been submitted. It shows only that he was familiar with the broader text and with the difference between the two. As a result, there is no more reason for holding the patentee to the literal terms of an amended claim than there is for abolishing the doctrine of equivalents altogether and holding every patentee to the literal terms of the patent."
In the end, the Court did rule as to whether Shoketsu infringed Festo's patents. Rather, it merely vacated the Appeals Court, and remanded for proceedings consistent with its opinion.
Bush and Putin Talk Trade and Information Technology
5/24. U.S. President Bush and Russian President Putin addressed trade issues, including trade in technology, during President Bush's trip to Russia.
The two nations issued a Joint Statement which included the following: "We welcome the positive trends in our cooperation in the area of information technologies, which is emerging as one of the priority areas of our bilateral relationship. The introduction of U.S. companies' advanced technologies in the Russian market, including through licensed modern software applications, contributes to economic growth in Russia. We support growing cooperation through services provided by Russian companies in designing software and high-tech products on the basis of Russia's existing scientific capabilities. We welcome the Information Technology Roundtable, which is providing for a comprehensive exchange of opinion between government agencies and businesses on removing barriers to business and protecting intellectual property rights in this area."
The U.S. and Russia also issued a Joint Declaration that covered free markets, Russian membership in the World Trade Organization (WTO), and the Jackson Vanik Amendment.
The economic cooperation section of the declaration provides that the U.S. and Russia "believe that successful national development in the 21st century demands respect for the discipline and practices of the free market. As we stated on November 13, 2001, an open market economy, the freedom of economic choice, and an open democratic society are the most effective means to provide for the welfare of the citizens of our countries."
The declaration continues that the two countries "will endeavor to make use of the potential of world trade to expand the economic ties between the two countries, and to further integrate Russia into the world economy as a leading participant, with full rights and responsibilities, consistent with the rule of law, in the world economic system. In this connection, the sides give high priority to Russia's accession to the World Trade Organization on standard terms."
The declaration also states that "Success in our bilateral economic and trade relations demands that we move beyond the limitations of the past. We stress the importance and desirability of graduating Russia from the emigration provisions of the U.S. Trade Act of 1974, also known as the Jackson Vanik Amendment. We note that the Department of Commerce, based on its ongoing thorough and deliberative inquiry, expects to make its final decision no later than June 14, 2002 on whether Russia should be treated as a market economy under the provisions of U.S. trade law. The sides will take further practical steps to eliminate obstacles and barriers, including as appropriate in the legislative area, to strengthen economic cooperation."
Bush and Putin also held a joint press conference. (See, transcript.) They were asked "when will the time come when the bulk of the exports from Russia would be high technology and high technology products, and not the primary products like oil and wood ...?" Putin responded that "what we need above all for Russia is an absolutely nondiscriminatory access to world markets and to U.S. markets. And we don't need preferences, we don't need subsidies, we don't need special favors. We just want normal, simple, ordinary, fair trade relations."
Bush stated that "The role of government is not to create wealth. The role of government is to create an environment in which the entrepreneur or small business or dreamer can flourish. And that starts with rule of law, respect of private property, less regulatory burdens on the entrepreneur, open banking laws so that all people have access to capital, and good tax policy."
He also stated that "there is an export tax on Russian goods. And the trouble with that, of course, is that no matter how good your goods are, if you price yourself out of the market, no one is going to buy. So that's a barrier. There's also barriers coming from Western countries that we've got to eliminate. Export controls on high tech goods are problematic, that we're now reviewing in the United States."
Finally, he stated that "it is very important for the infrastructure to be modernized as quickly as possible, so that information from around the world moves quickly, freely throughout Russia, so that an entrepreneur such as yourself are able to learn from other entrepreneurs being connected through the Internet, which is going to be a great source of ideas and potential wealth for Russia."
The two were also asked "What specific and concrete steps can we expect from the United States in order to support our accession to the World Trade Organization?"
Bush responded: "Starting with having a President who thinks you ought to be in the WTO and I think you ought to be. And I think the accession to the WTO ought to be based upon the rules that every other nation has had to live up to. Nothing harsher, nothing less harsh.
He added that "I'm for Russia going into the WTO. Just like I asked just like I asked Congress yesterday once in a press conference in Russia to get rid of Jackson Vanik. So, to answer your questions, I vote aye, assuming that the President the Russian government continues to reform her economy, open it up, make market based economy work." 
FBI Releases More Carnivore Records
5/28. The Electronic Privacy Information Center (EPIC) stated in a release that "Documents obtained by EPIC under the FOIA show that an FBI anti-terrorism investigation possibly involving Usama bin Laden was hampered by technical flaws in the Bureau's controversial Carnivore Internet surveillance system."
Specifically, one internal FBI memo obtained by the EPIC states that "The software was turned on and did not work correctly. The FBI software not only picked up the E-Mails under the electronic surveillance of the FBI's target, [redaction] but also picked up E-Mails on non-covered targets." As a result, the FBI "destroyed all the E-Mail take, including the take on [redaction]". (The FBI heavily redacted this document before producing it to the EPIC.)
David Sobel, General Counsel of EPIC, submitted a request pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) on July 12, 2000, seeking "the release of all FBI records concerning the system known as 'Carnivore' and a device known as 'EtherPeek' for the interception and/or review of electronic mail (e-mail) messages."
The EPIC filed a complaint in U.S. District Court (DC) against the DOJ and FBI on July 31, 2000, seeking documents pursuant to the FOIA. Sobel is also the lead counsel for EPIC in that suit. Friday, May 24, was a court imposed deadline for production of certain records.
Sobel stated that he received over 500 pages in this production round, much of which was newspaper clippings and congressional testimony. However, he found three pertinent documents, which he published in the EPIC web site as JPG format images.
First, there is an FBI memo dated April 5, 2000, that describes the failure of the software. (This memo is also set out in full below.) Second, there is an April 11 memo posing legal questions pertaining to the "improper capture of data". Third, there is an April 12 memo in response. See also, EPIC's Carnivore page and May 28 release.
The memo does not reference Carnivore. However, it does describe software used by the FBI for e-mail surveillance. The FBI has not publicly stated that it uses any other software for this purpose. Moreover, the FOIA request requested documents pertaining to Carnivore. The memo also does not reference Usama bin Laden. It does, however, reference the "UBL Unit", and its "FISA" target.
The Foreign Intelligence Surveillance Act (FISA) is codified in Title 50 of the U.S. Code (pertaining to "War and National Defense"). See, 50 U.S.C. § 1801 et seq. There are currently three different standards for obtaining different types of court orders authorizing electronic surveillance. An ordinary wiretap order, which enables law enforcement agencies to obtain the content of a phone call or Internet communication, is issued by a judge upon a showing of probable cause. This is often referred to as a Title III order, although, it is covered in Title 18 of the U.S. Code (pertaining to "Crimes and Criminal Procedure"). In contrast, FISA warrants have a much lower standard, but are restricted to foreign intelligence information. Moreover, it extends to "a group engaged in international terrorism". Hence, Al Qaeda is subject to FISA surveillance.
These documents may be relevant to two ongoing debates. First, it may relate to the debate over efforts undertaken by the FBI to investigate terrorist threats prior to September 11, 2001. Second, it may relate to the debate between privacy advocacy groups, such as the EPIC, and the FBI regarding threats to privacy posed by Carnivore.
For example, a FBI web page states that "The Carnivore device provides the FBI with a ``surgical´´ ability to intercept and collect the communications which are the subject of the lawful order while ignoring those communications which they are not authorized to intercept."
Similarly, Kevin DiGregory, a Deputy Assistant Attorney General in the Clinton administration, stated in his prepared testimony before the House Judiciary Committee's Subcommittee on the Constitution on July 24, 2000, that "Carnivore is, in essence, a special filtering tool that can gather the information authorized by court order, and only that information. ... Carnivore is a minimization tool that permits law enforcement strictly to comply with court orders, strongly to protect privacy, and effectively to enforce the law to protect the public interest."
In contrast, EPIC's Sobel stated in a release that "These documents confirm what many of us have believed for two years -- Carnivore is a powerful but clumsy tool that endangers the privacy of innocent American citizens. ... As we suggested when it first became public, Carnivore's use should be suspended until the questions surrounding it finally can be resolved."
Meanwhile, Donald Kerr, Director of the Lab Division at the Federal Bureau of Investigation, also testified at the July 24, 2000, hearing. He stated in his prepared testimony that "terrorist bombers plan their strikes using the Internet".
FBI Memo Re Carnivore Failure
[redaction] FISA-Denver

From: [redaction]
To: BOWMAN, SPIKE (MARION) [redaction]
Date: 4/5/00 5:29 PM
Subject: [redaction]

I just received a call from [redaction] at OIPR. To state that she is unhappy with ITOS and the UBL Unit would be an understatement of incredible proportions. I will try to relate what [redaction] thinks has happened with the above named FISA.

[redaction] secured an ELSUR FISA very quickly on [redaction] at the request of [redaction] states that she was assured that the FBI had special software which could do what the FBI said it could do. In fact [redaction] states that the technical people in Quantico approved the FISA language.

The FBI technical people went to install the FBI software a [redaction] to accomplish the electronic surveillance on March 16.

The software was turned on and did not work correctly. The FBI software not only picked up the E-Mails under the electronic surveillance of the FBI's target, [redaction] but also picked up E-Mails on non-covered targets. The FBI technical person was apparently so upset that he destroyed all the E-Mail take, including the take on [redaction] is under the impression that no one from the FBI [redaction] was present to supervise the FBI technical person at the time. Now the FBI technical people want to run a new software experiment at the carrier to see if it works.

[redaction] states that OIPR was never told that the FBI software was experimental. OIPR was informed that it would work. The FBI technical people are still trying to make it work in [redaction], and want to resume the electronic surveillance. The FBI people in [redaction] also want a physical search warrant to pick up the E-Mails from the carrier, which the FBI picked up on the target, but destroyed.

[redaction] informed me that the FBI does not have the authority to resume electronic surveillance until she receives a written explanation of what has happened and she files something with the court. Obviously, she has no intention of securing a search warrant either until this is straightened out.

When you add this story to the FISA mistakes covered in the E.C. I have prepared to go to the field, and which is in NSLU for signature before it goes to [redaction] for his signature, you have a pattern of occurrences which indicate to OIPR an inability on the part of the FBI to manage its FISAs.

[redaction] and [redaction] please see me ASAP.


cc: [redaction]
Sen. Lieberman to Introduce Broadband Legislation
5/28. Sen. Joe Lieberman (D-CT) gave a speech on developing a national broadband strategy. He stated that he will introduce legislation next week. He spoke at Wind River Systems in Alameda, California.
He stated that "we in government can't let this potentially fertile field of technology lie fallow. We need to make the most of this moment, in which the high speed Internet is on the cusp of catalyzing a quantum leap in our economy. Which is to say, we need to lead, and seed."
He continued that "Unfortunately, the case for making broadband deployment a priority of a national economic strategy has yet to be understood adequately by government. The broadband buck is still stuck on the government's desk -- and with it, thousands of new opportunities and millions of new jobs. Decisions are piling up: on spectrum, competition, rights management, spam, privacy, child protection, and more. These are important issues that need to be resolved, and they need to be resolved comprehensively, with an overarching vision."
He also stated that he will introduce a bill in the Senate "next week" that would require "the Administration to develop a national broadband strategy within six months of passage". He stated he would introduce more legislation in coming months.
He stated that "The follow up legislation I'll propose in the coming months will call on the FCC to develop a regulatory framework to meet the challenges of the next generation Net … propose tax credits for the deployment of advanced broadband … encourage research and development on advanced broadband infrastructure that will enable this technology to reach into all the corners and crevices of the country … and present a program to incentivize research and development on major applications in areas where government plays a central role, including education, healthcare, and e-government." (Dots in original text.)
Juster Addresses Cyber Security
5/22. Under Secretary of Commerce Kenneth Juster gave a speech titled "Economic Security and Critical Infrastructure Protection" in New York City. Juster is head of the Bureau of Industry and Security, which was previously named the Bureau of Export Administration.
He stated that "One of the important lessons learned from September 11 is that for many terrorists -- including Osama in Laden and al-Qaeda -- the targets of attack are our economy and our way of life. ... By attacking our economy and our infrastructures, terrorists hope to drive us inward -- to undermine our national will, compel us to abandon our global engagement, and cause us to retreat into isolationism."
"Protection of our critical infrastructures is an essential element of our overall approach to homeland security. Critical infrastructures refer to those industries, institutions, and distribution networks that provide a continual flow of goods and services essential to the nation's defense and economic security, the functioning of its government, and the welfare of its citizens. These infrastructures relate to information and communications", said Juster.
He continued that "The very information systems and networks that facilitate commerce and industrial operations also leave us potentially more vulnerable to a new type of threat -- that of cyber attacks.
"Securing the nation's critical infrastructures against cyber attacks goes well beyond the government's traditional role of physical protection through defense of national airspace and national orders. Because there are no boundaries in cyberspace, and because approximately 90 percent of the nation's critical infrastructures are privately owned and operated, government action alone cannot secure them. Securing our critical infrastructures must, therefore, be a shared responsibility."
He also stated that "Companies must institutionalize the process of identifying critical assets, assessing their vulnerabilities, and managing the risks associated with those vulnerabilities. I can envision the insurance industry and the legal community establishing over time a market environment that provides incentives for companies to do this."
He also discussed bills that are pending in the Congress to create "an exemption under the Freedom of Information Act for information on critical infrastructures that is shared with the government as well as creating an antitrust exemption for cooperation among companies on matters of critical infrastructure protection."
(See, HR 2435, the Cyber Security Information Act, sponsored by Rep. Tom Davis (R-VA) and Rep. Jim Moran (D-VA), and S 1456, the Critical Infrastructure Information Security Act, sponsored by Sen. Bob Bennett (R-UT).)
However, he added that "There is not going to be an avalanche of information flowing to the federal government from private industry merely because legislation creates a new exemption to the Freedom of Information Act."
He spoke at a conference hosted by the Information Technology Association of America (ITAA) and Prudential Securities on e-security and homeland defense.
People and Appointments
5/25. President Bush announced that he intends to nominate Diana Furchtgott- Roth to be a Director of the Federal Housing Finance Board for the remainder of a seven year term expiring February 27, 2004. She has served as Chief of Staff at the Council of Economic Advisors since March 2001. Before that, she was a Resident Fellow and Assistant to the President at the American Enterprise Institute. See, White House release
More News
5/28. The Federal Communications Commission (FCC) entered into a Consent Decree with SBC under which SBC agrees to make a $3.6 million payment to the United States Treasury. The FCC stated that this is for "inaccurate information SBC submitted to the FCC in affidavits supporting two separate section 271 applications to provide long distance service in Missouri, Oklahoma and Kansas". See, FCC release.
5/24. The Federal Communications Commission (FCC) released its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Section 272(f)(1) Sunset of the BOC Separate Affiliate and Related Requirements". It initiates an inquiry regarding the sunset of the statutory requirements under Section 272 imposed on Bell Operating Companies (BOCs) when they provide in-region interLATA services. This is WC Docket No. 02-112. The FCC adopted this NPRM at its May 16 meeting.
5/20. Chris Israel, the Deputy Assistant Secretary for Technology Policy, at Department of Commerce, gave a speech titled "The Security Race: Challenges, Leadership and Tools for Success" at the GovNet 2002 Summit in Hot Springs, Virginia.
5/28. The Supreme Court denied certiorari in Illinois Bell Telephone Co. v. WorldCom, No. 00-921. See, Order List [PDF] at page 10.
5/28. The Supreme Court granted certiorari in BellSouth v.. North Carolina Utilities Commission, No. 00-1699. It wrote that "The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. ___ (2002). See, Order List [PDF] at page 1.
5/28. The Supreme Court went back on recess until Monday, June 3, 2002.
DC Circuit Overturns FCC Unbundling and Line Sharing Orders
5/24. The U.S. Court of Appeals (DCCir) issued its opinion in USTA v. FCC, granting petitions for review of an FCC unbundling order and line sharing order.
Incumbent local exchange carriers (ILECs) and the U.S. Telecom Association (USTA), a group that represents them, challenged the Federal Communications Commission's (FCC) order requiring ILECs to lease a variety of unbundled network elements to competitive local exchange carriers (CLECs). They also challenged an FCC line sharing order that requires ILECs to lease to CLECs only a portion of local copper loops, rather than the whole line, for the purpose of offering DSL service.
The Appeals Court granted both petitions. It remanded both rules to the FCC for further proceedings. While the ILECs prevailed, the FCC already has underway a proceeding in which it is examining its unbundling rules.
FCC Chairman Michael Powell had this reaction: "The Court's decision today directs the Commission to undertake a more focused examination of the Act's unbundling obligations. The Commission is currently examining its unbundling framework, including line sharing rules, in its Triennial Review notice, which is presently open for public comment. We will be exploring many of the issues that the Court raised in its opinion in the coming months as we evaluate the record in this proceeding. While we continue to evaluate the Court's opinion and consider all the Commission's options, in the meantime, the current state of affairs for access to network elements remains intact." See, FCC release.
The ILECs are pleased with the decision. Verizon SVP Michael Glover stated in a release that "Verizon is pleased that the court of appeals recognized that the current overly broad unbundling requirements undermine investment and innovation by all competitors, and impose significant costs on the economy as a whole. The decision makes clear that unbundling requirements can be imposed only in specific market segments where there is proof that competitors truly need access to a particular element to enter and compete. Unbundling requirements cannot be justified where competitors already are using their own facilities to compete, as they do today using their own switches and high capacity transport."
Similarly, SBC stated in a release that "Today's ruling is a very positive step forward in developing healthy, sustainable and economically rational competition that will benefit consumers. The Court correctly rejected the FCC's ``more is better´´ approach when determining what network elements incumbents must make available, regardless of the economic impact and regardless of the actual competitive situation in a given market." See also, USTA release.
In contrast, AT&T stated in a release that "Today's decision seems out of step with recent positive developments promoting competition and will bring added uncertainty to an industry that is just beginning to show signs of a rebound. The customer benefits of a competitor's ability to lease portions of the Bells' networks are real and proven for millions of customers in states that have taken seriously the Act's pro-competition mandate." It added that "We will work diligently with the FCC to demonstrate that UNEs are an essential component without which the promised competition and customer benefits envisioned by Congress will not be realized."
Wednesday, May 29
The House is in recess until Tuesday, June 4.
The Senate is in recess until Monday, June 3.
The Supreme Court is in recess until June 3.
9:30 AM - 12:00 NOON. The U.S. International Telecommunication Advisory Committee, which advises the Department of State on policy and technical issues with respect to the International Telecommunication Union, will meet to prepare for the June 2002 meeting of the Telecommunication Sector Advisory Group.
10:00 AM - 12:00 NOON. The Business Software Alliance (BSA) will host media breakfast to release the results of BSA's first Internet Piracy Survey on the attitudes and experiences of Internet users regarding downloading and purchasing of software online. To register, contact Roni Singleton at Dittus Communications at 202 775-1401 or roni.singleton Location: BSA, 1150 18th Street NW, Suite 700.
1:00 - 3:00 PM. The Federal Communications Commission's (FCC) Office of Engineering and Technology will host a presentation by Peter Stanforth of MeshNetworks. He will discuss self forming, self healing mesh topology as the alternative to today's star topology cellular systems. See, FCC notice. Location: FCC, Commission Meeting Room (TWC-305), 445 12th Street, SW.
1:20 PM. Attorney General John Ashcroft and FBI Director Robert Mueller will hold a press conference to announce a reorganization of the FBI. Location: FBI.
Thursday, May 30
9:00 AM - 5:30 PM. The FCC's Public Safety National Coordination Committee will hold a series of meetings. The Interoperability Subcommittee will meet from 9:00 - 11:30 AM. The Technology Subcommittee will meet from 12:30 - 3:00 PM. The Implementation Subcommittee will meet from 3:00 - 5:30 PM. Location: FCC, Commission Meeting Room, 445 12th St., SW.
POSTPONED. 9:30 AM. The Broadband Alliance will hold a press conference. For more information, contact Dan Rene at 202 496-1000 x244.
12:00 NOON. The Congressional Internet Caucus Advisory Committee will host a panel discussion titled "Speeding Broadband Deployment By Balancing of Rights of Way Interests". The speakers will be Marilyn Praisner (Montgomery County Council), Robert Nelson (Michigan PSC), Martin Stern (I-ROW), and Sandy Wilson (Cox Enterprises). Lunch will be served. RSVP to rsvp or call Danielle at 202 638-4370. Location: Room HC-5, Capitol.
Friday, May 31
8:30 AM - 4:00 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will hold an open meeting. For more information, contact Gwen Blount at 703 292-8900. See, notice in Federal Register. Location: National Foundation, 4201 Wilson Blvd., Room 1235, Arlington, VA.
9:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee will hold a General Membership meeting. Location: FCC, Commission Meeting Room, 445 12th St., SW.
Monday, June 3
The Senate will meet at 1:00 PM.
The Supreme Court will return from recess.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Rambus v. infineon Technologies, No. 01-1449, an appeal from the U.S. District Court (EDVa) in a patent infringement case involving semiconductor memory devices. At issue is the existence and scope of the patent disclosure obligations that arise as a result of participation in a standard setting body. This is D.C. No. 3:00CV524; the District Court opinion of August 9, 2001 is at 2001 WL 913972. Location: LaFayette Square, at 717 Madison Place, NW.
2:00 - 3:30 PM. The Federal Trade Commission's (FTC) Bureau of Competition will hold a public workshop on merger investigation best practices. This is the first workshop of a seven part, five city, series. This event will focus on electronic records. See, FTC release. Location: FTC, Room 332, 600 Pennsylvania Avenue NW.
Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) titled "In the Matter of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities". This is CC Docket No. 02-33. See, Order [PDF] extending deadline from May 14 to June 3. See also, original notice in Federal Register.
Tuesday, June 4
The House will meet at 2:00 PM for legislative business. No recorded votes are expected before 6:00 PM. The House will consider a number of measures under suspension of the rules.
10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The FCC's UWB Proceeding: An Examination of the Government's Spectrum Management Process." Webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
10:00 AM. The Senate Health, Education, Labor, and Pensions Committee will hold a hearing on legislation to authorize funding for the National Science Foundation. Location: Room 430, Dirksen Building.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Insight Development v. Hewlitt Packard, No. 01-1459, an appeal from the U.S. District Court (NDCal) in a patent infringement case involving web imaging technology. Location: LaFayette Square, at 717 Madison Place, NW.
2:00 - 4:00 PM. The FCC's Advisory Committee for the 2003 World Radiocommunication Conference (WRC-03 Advisory Committee) will meet. See, notice and agenda [PDF]. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th Street, SW.
4:00 PM. The House Judiciary Committee's Subcommittee on Crime will hold a hearing and a mark up session for HR 4598, the Homeland Security Information Sharing Act, sponsored by Rep. Saxby Chambliss (R-GA). Audio webcast. Location: Room 2141, Rayburn Building.
SEC Chairman Addresses Electronic Offerings
5/24. Securities and Exchange Commission (SEC) Chairman Harvey Pitt gave a speech in Washington DC to the Investment Company Institute, 2002 General Membership Meeting. He addressed all electronic offerings.
He stated that "In approving an ``all electronic´´ variable annuity offering last fall, we faced the issue of access to disclosure documents exclusively over the Internet. Our decision there is only a beginning. We are anxious to undertake a fresh look at our prior guidance concerning electronic delivery of information under the federal securities laws. Our regulations must keep pace with product innovation as well as investor demands and needs."
Pitt also spoke about erosion of investor confidence in securities markets, and securities industry reform.
VeriSign Sued Over Domain Name Marketing
5/28. Marc Luxenberg filed a complaint in the Superior Court for the State of California, Los Angeles County, against VeriSign alleging that it sent misleading domain name renewal notices that "seek to trick domain- name owners into unwittingly transferring their accounts to VeriSign".
The complaint alleges that "on or about April 25, 2002, Verisign began sending a ``Domain Name Expiration Notice´´ to thousands of consumers of its competitors" that "carried an artificial ``deadline´´ for reply of May 15, 2002, and thereby has implied that certain domain names of targeted potential costumers are about to expire." The complaint continues that "there is no necessary relation between the reply deadline noted in the" notice "and the actual expiration date of the domain name."
The complaint also states that "at the bottom of the reverse side" the notice "authorizes VeriSign to transfer the domain name(s) from the consumer's current registrar to VeriSign, and to extend the term of (i.e., ``renew´´) the domain name."
The complaint alleges that these notices are "deceptive", and have caused domain name owners to transfer their domain names to VeriSign.
The complaint contains four counts: unlawful, unfair and deceptive business practices in violation of California Business & Professions Code § 17200 et seq., false and misleading advertising in violation of California Business & Professions Code § 17500 et seq., violation of the Consumers Legal Remedies Act, California Civil Code § 1750 et seq., and common law fraud and deceit.
Luxenberg seeks class action status. He is represented by the law firm of Weiss & Yourman. Previously, BulkRegister filed a complaint against VeriSign for the same marketing tactics.
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