|Supreme Court Reverses in
|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
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
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
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.
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
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
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
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
|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
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
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
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
|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.)
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)
The EPIC filed a complaint
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
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
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
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
To: BOWMAN, SPIKE (MARION) [redaction]
Date: 4/5/00 5:29 PM
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
[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
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
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.
|Sen. Lieberman to Introduce
|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
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
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
|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
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
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
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
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
|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
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
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
|DC Circuit Overturns FCC
Unbundling and Line Sharing Orders
|5/24. The U.S.
Court of Appeals (DCCir) issued its opinion
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."
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
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
@dittus.com. Location: BSA, 1150 18th Street NW, Suite
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.
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 @netcaucus.org 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
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
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
|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
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
|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.
filed a complaint against VeriSign for the same marketing
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