Tech Law Journal Daily E-Mail Alert
July 11, 2002, 9:00 AM ET, Alert No. 467.
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House Committees Approve Bill to Create Department of Homeland Security
7/10. Five House Committees with jurisdiction over HR 5005, the Homeland Security Act of 2002, marked up the bill on Wednesday, July 10, making minor changes.
The House International Relations Committee amended and approved the bill by voice vote. The House Armed Services Committee amended and approved the bill by voice vote. The House Science Committee amended and approved the bill by voice vote. The House Judiciary Committee amended and approved the bill by voice vote. The House Ways and Means Committee amended and approved by a vote of 34 to 3.
The House Science Committee (HSC), which has jurisdiction over the National Institute of Standards and Technology (NIST), amended the bill to block the transfer of NIST's Computer Security Division (CSD) to the new Department of Homeland Security (DHS). The Computer & Communications Industry Association (CCIA) and Members of Congress who are active on technology issues had opposed the move. See, related stories, below.
In addition, the House Science Committee voted to create a separate Undersecretary for Science and Technology in the new DHS. See, HSC release.
More Committees are scheduled to mark up the bill on Thursday, July 11. Also, the Select Committee on Homeland Security, chaired by House Majority Leader Dick Armey (R-TX), is scheduled to hold a hearing on July 11 at 10:00 AM, with top administration officials testifying. The full House is scheduled to take up the bill during the week of July 22.
16 Representatives Oppose Transfer of NIST Computer Security Division
7/10. Rep. Bob Goodlatte (R-VA), Rep. Rick Boucher (D-VA), and other Members of Congress wrote a letter to Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, opposing the provision in HR 5005 that would move the NIST's Computer Security Division (CSD) to the Department of Homeland Security.
The letter states that "While we support the Administration's efforts to make our country more secure in the face of terrorist threats, we are concerned that this provision, found in Section 202 of the President's proposal, would unravel years of collaboration between the CSD and the private sector to enhance the level of confidence in computer security practices. We are concerned that this reduced collaboration would be counterproductive to the Administration's goals by reducing confidence in American made IT systems thereby making our critical infrastructure more vulnerable to terrorist attack."
Fourteen other Representatives also signed the letter, including Rep. Zoe Lofgren (D-CA), Rep. Anna Eshoo (D-CA), Rep. Tom Davis (R-VA), Rep. Jim Moran (D-VA), Rep. Ileana Ros-Lehtiten (R-FL), Rep. Barney Frank (D-MA), Rep. Lamar Smith (R-TX), Rep. Steve Horn (R-CA), Rep. Gerry Weller (R-IL), and Rep. Pete Sessions (R-TX).
CCIA Opposes Transfer of CSD to DHS
7/10. Ed Black, P/CEO of the Computer & Communications Industry Association (CCIA), wrote a letter [2 pages in PDF] to Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, and other Members of Congress, in which he stated that the Computer Security Division at the NIST should not be transferred to the Department of Homeland Security, pursuant to HR 5005, the Homeland Security Act of 2002.
He wrote that "fundamental liberties will be at risk if we are too zealous in our pursuit of wrongdoers. We must avoid departmental incentives that compromise core agency missions or, worse, traditional democratic values. We believe the proposed transfer of the Computer Security Division from the National Institute of Standards and Technology (NIST) to the proposed Department of Homeland Security is one such action, and one we strongly urge you to oppose. Such a transfer would transform NIST from a civilian agency known for assisting the private sector into one in which law enforcement and national security concerns are dominant."
He also wrote that the "NIST has distinguished itself through its expertise in cryptography: the creation of codes crucial to safeguarding business, government and personal assets from unauthorized access." However, he continued that the National Security Agency and the FBI have compromised the work of the NIST in the past through such initiatives as the Clipper Chip and key recovery.
Black concluded that "law enforcement and national security sectors have a checkered past with regard to NIST and computer security. Their interference in NIST's mission has repeatedly compromised the private sector's confidence in the Institute and seems certain to do so in the future if repeated. We believe the last thing our nation needs now is a reprise of debates that were long ago settled."
Rep. Barcia Introduces NIST Authorization Bill
7/9. By Rep. James Barcia (D-MI) and 13 other Democrats introduced HR 5074, a bill to authorize appropriations for the National Institute of Standards and Technology (NIST) for FY 2003, 2004, and 2005. The bill was referred to the House Science Committee.
Rep. Barcia wrote in extended remarks submitted for the Congressional Record that this bill, among other things, "provides funding for the Advanced Technology Program and addresses Administration concerns about the program. First this bill provides a stable funding base for the ATP by providing sufficient funds to allow for $60.7 million in new awards to be made in each fiscal year. In addition, the bill authorizes four policy changes to the ATP that were proposed by Secretary Evans. The bill makes Secretary's proposed changes to (1) allow universities to lead joint ventures, (2) allow universities and non-profit laboratories to be invested with intellectual property, (3) stress that ATP does not support product development, and (4) allows for private-sector experts to participate in the ATP project review process." See, Cong. Rec., June 9, 2002, at Page E1222.
ACLU Says Cable Companies Will Control Access to Content on Internet
7/10. The American Civil Liberties Union (ACLU) released a report [12 pages in PDF] regarding cable modem service providers. The ACLU report argues that "the existence of the Internet as a free and neutral civic space could come to an end", unless the government mandates open access to cable Internet access facilities.
This ACLU report, in turn, references a much longer report [2.4 MB in PDF] titled "Technological Analysis of Open Access and Cable Television Systems", that was commissioned by the ACLU, and written by the Columbia Telecommunications Corporation (CTC).
The ACLU argues that while most people access the Internet today with phone modems, most people will soon use cable modems. The report dismisses DSL service as not being a viable competitive alternative to cable modem service. It does not address other prospective broadband technologies. Hence, the ACLU argues that cable companies will have dominance and monopoly power.
The ACLU further argues that cable companies will use this power to control access to content. This, in turn, will restrict free speech. Citing the CTC report, the ACLU argues that cable "providers can ``slow or block access to certain sites on the Internet, such as those without financial arrangements with the cable company’s ISP, or those with content considered objectionable for political or competitive reasons,´´ even while they ``speed transmission to an affiliated site (or a site that has paid the operator for the privilege of special treatment).´´"
The ACLU adds that "At a time when many cable providers have assembled far flung business empires on the premise that cross promotion and other ``synergies´´ will yield big profits, they will come under strong pressure to do the equivalent. And what can be done in the commercial context could be done just as easily to political content."
The National Cable Telecommunications Association (NCTA) issued a release in which it stated that "The ACLU offers no evidence whatsoever to show that the provision by cable operators of high speed access to the Internet is somehow stifling development of, or access to, any content on the Internet. All of the Internet's content is a simple mouse click away for cable modem users. Moreover, cable modem service has enriched the Internet experience for millions of households and its high speed capability has stimulated the development of new, innovative Internet content that never before existed. The FCC is currently considering the regulatory status of cable modem service, and NCTA has filed comments -- and will file reply comments -- showing at length why regulation of the sort proposed by the ACLU is inappropriate."
Federal Circuit Rules on Public Use and On Sales Bars to Patentability
7/9. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in Netscape v. Konrad, a patent case involving what constitutes a "public use" and "on sale" for the purposes of the Section 102 conditions for patentability. In this case, the holder of patents for systems that allow a computer user to access and search a database residing on a remote computer had demonstrated his claimed invention more than one year before the key patent filing date.
Background. Allan Konrad is the holder of U.S. Patent Nos. 5,544,320, 5,696,901, and 5,974,444, each of which is titled "Remote information service access system based on a client server service model". The ’320 patent, Konrad’s first issued patent, is a continuation of an application filed on January 8, 1993. The ’901 patent is a continuation of the ’444 patent application, which is a continuation of the ’320 patent application. Hence, the earliest filing date that Konrad is entitled to is January 8, 1993. This, in turn, makes January 8, 1992, the critical date for Section 102 analysis.
Konrad's problem is that he engaged in several activities prior to this date. First, he demonstrated the claimed invention to two University of California computing personnel, without imposing any obligation of confidentiality. Second, he demonstrated the high energy physics remote database object to the Stanford Linear Accelerator Center, again, without a confidentiality condition. Third, he offered to create the high energy physics remote database object system for the University Research Association Superconducting Super Collider Laboratory in exchange for four months full time employment or no more than $48,000.
Statute. 35 U.S.C. § 102 provides, in part, that "A person shall be entitled to a patent unless ... (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States".
District Court. Netscape filed a complaint in U.S. District Court (NDCal) against Konrad seeking judgment of invalidity, noninfringement, and unenforceability. The District Court held that the three patents are invalid under the public use and on-sale bars of 35 U.S.C. § 102(b).
Appeals Court. The Appeals Court affirmed. It first noted that "Public use includes ``any use of [the claimed] invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor.´´". However, it also noted that "The law recognizes that an inventor may test his invention in public without incurring the public use bar. ``Experimental use negates public use; when proved, it may show that particular acts, even if apparently public in a colloquial sense, do not constitute a public use within the meaning of section 102.´´" (Citations omitted.)
The Court elaborated that the circumstances that the Court should consider in determining whether there was a public use include "the nature of the activity that occurred in public; the public access to and knowledge of the public use; whether there was any confidentiality obligation imposed on persons who observed the use; whether persons other than the inventor performed the testing; the number of tests; the length of the test period in relation to tests of similar devices; and whether the inventor received payment for the testing".
The Court held that since Konrad did not make the two university employees to whom he demonstrated the invention aware of any confidentiality requirement, this demonstration constituted a public use. Similarly, the Court held that his failure to make the demonstration attendees at the Stanford Linear Accelerator Center aware of any confidentiality requirement made this event a public use.
Finally, the Court held that his offer to make the high energy physics remote database object for four months full time employment or no more than $48,000 constituted a commercial offer for sale.
FCC to Hold Spectrum Policy Workshops
7/10. The Federal Communications Commission's (FCC) Spectrum Policy Task Force announced that it will hold a series of four public workshop in August. See, FCC notice [PDF]. On August 1 it will hold a workshop titled "Experimental Licenses and Unlicensed Spectrum". On August 2 , it will hold a workshop titled "Interference Protection". On August 5, it will hold a workshop titled "Spectrum Efficiency". On August 9, it will hold a workshop titled "Spectrum Rights and Responsibilities". All workshops will be held from 9:00 AM to 3:00 PM in the FCC's Commission Meeting Room, 445 12th Street, SW.
People and Appointments
7/10. David Sutphen was named VP and Legislative Counsel for Governmental Relations at the Recording Industry Association of America (RIAA). He was previously counsel to Sen. Ted Kennedy (D-MA), handling intellectual property, antitrust and privacy issues before the Senate Judiciary Committee. Before that, he was Chief of Staff for Rep. Harold Ford (D-TN). 
More News
7/10. President Bush sent a brief memorandum to the heads of executive departments and agencies that urges "cross agency teamwork, using E-Government to create more cost effective and efficient ways to serve citizens."
7/10. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "Corporation for Public Broadcasting Oversight and a Look Into Public Broadcasting in the Digital Era". See, prepared testimony of witnesses: Robert Coonrod (Corporation for Public Broadcasting), Pat Mitchell (Public Broadcasting Service), Kevin Klose (National Public Radio), Andrea Lafferty (Traditional Values Coalition), John Lawson (Association for Public Television Stations), Michael Willner (Insight Communications), and Laura Walker (WYNC-FM).
7/10. Qwest Communications stated in a release that "it was informed by the U. S. Attorney's office in Denver yesterday afternoon that it had begun a criminal investigation of Qwest. The U.S. Attorney’s office did not disclose the subject matter of the investigation. Qwest plans to fully cooperate with the U.S. Attorney's office."
7/10. California Governor Gray Davis signed AB 2033, sponsored by Assemblyman Robert Pacheco (R - Walnut). This bill amends the Evidence Code to allow admission of certain "nonerasable optical image reproduction or any other reproduction of a public record by a trusted system, as defined in Section 12168.7 of the Government Code, if additions, deletions, or changes to the original document are not permitted by the technology". The bill further provides that "This act shall become operative on the date the Secretary of State adopts uniform standards for storing and recording permanent and nonpermanent documents in electronic media, as required by Section 12168.7 of the Government Code."
7/10. California Governor Gray Davis signed AB 2831, sponsored by Assemblyman Joseph Simitian (D - Palo Alto), which pertains to the communication of clinical laboratory test results via the Internet or e-mail.
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Thursday, July 11
The House will meet at 10:00 AM for legislative business.
CANCELLED. 9:00 AM. The Senate Judiciary Committee will hold a hearings to examine oversight of the Department of Justice and the impact of a new Department of Homeland Security.
9:30 AM. The House Commerce Committee will mark up HR 5005, the Homeland Security Act. Location: Room 2123, Rayburn Building.
10:00 AM. The House Select Committee on Homeland Security will hold a hearing on HR 5005, the Homeland Security Act. Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, Secretary of Treasury Paul O'Neill, and Attorney General John Ashcroft are scheduled to testify. See, notice. Location: Room 345 (Cannon Caucus Room), Cannon Building.
10:00 AM. The House Government Reform Committee will meet to mark up HR 5005, the Homeland Security Act of 2002. See, release. Location: Room 2154, Rayburn Building.
10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes mark up of S 2395, the Anticounterfeiting Amendments of 2002, and consideration of the nomination of John Rogers to be a judge of the U.S. Court of Appeals (6thCir). See, notice. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.
10:00 AM - 4:00 PM. The FTC and DOJ will continue their series of events titled Competition and Intellectual Property Law and Policy in the Knowledge Based Economy. This event will be a panel of speakers addressing "Federal Circuit Jurisprudence: Jurisdiction, Choice of Law, and Competition Policy Perspectives". The first session will run from 10:00 AM to 12:30 PM. The second session will run from 2:00 PM to 4:00 PM. For more information, call Gina Talamona at 202 514-2007. See, FTC notice. Location: Room 432, FTC Main, 600 Pennsylvania Ave, NW.
12:00 NOON. USPTO Director James Rogan will hold an online dialogue with the public. The USPTO notice states that "Members of the press are invited to participate as observers".
12:00 NOON. Sen. John McCain (R-AZ), the ranking Republican on the Senate Commerce Committee, will hold a press conference regarding "corporate governance reform". Location: First Amendment Room, National Press Club, 529 14th St. NW, 13th Floor.
2:00 PM. The Senate Finance Committee will hold a hearing on S 848, the Social Security Number Misuse Prevention Act. Location: Room 215, Dirksen Building.
Deadline to submit comments to the FCC regarding its Declaratory Ruling and Second Further Notice of Proposed Rulemaking clarifying that providers of Internet protocol telecommunications relay services are eligible for reimbursement from the Interstate TRS Fund. See, FCC notice [PDF].
Friday, July 12
The House will meet at 9:00 AM for legislative business. No votes are expected after 6:00 PM.
10:00 AM. Hearing before the U.S. District Court (EDVa) in Washington Post v. Gator on the Washington Post's motion for preliminary injunction. Plaintiffs allege web based copyright infringement in their complaint [99 pages in PDF] and Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction [35 pages in PDF]. Tape recorders and cameras are prohibited in the courtroom. Location: Room 800, 8th Floor, Albert Bryan Courthouse, 401 Courthouse Square, Alexandria, VA.
12:00 NOON. The Cato Institute will host a briefing titled Profiling and National IDs: Security and Freedom in a Free Society. The speakers will be Charlotte Twight (author of Dependent on D.C.: The Rise of Federal Control over the Lives of Ordinary Americans), Robert Levy (Cato), and Timothy Lynch (Cato). See, registration page. Lunch will follow. Location: Room B-354, Rayburn Building.
12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled When Wireless Grows Up: Mandates vs. Markets for a ‘Mature’ Industry. The scheduled speakers include Rudy Baca (Precursor Group), Steven Berry (CTIA) and Kevin Krufky (office of Sen. Sam Brownback). See, PFF notice. To register, contact Rebecca Fuller at 202 289-8928 or Location: Room B340, Rayburn Building.
TIME? Commerce Secretary Donald Evans will hold an online chat on AOL with small investors.
Saturday, July 13
Day one of four of the National Association of Patent Practitioners' (NAPP) annual meeting. See, registration and information page. Location: Wyndam Washington DC, 1400 M Street, NW.
Monday, July 15
12:30 PM. Larry Mefford (Assistant Director, FBI Cyber Division) will give a speech. Pre-registration is required to attend; contact Kristin Woolley at 703 284-5323 or kwoolley Location: Oracle Corporation, 1910 Oracle Way, Reston, VA.
Day three of four of the National Association of Patent Practitioners' (NAPP) annual meeting. See, registration and information page. At 9:00 AM, Steve Kunin (Deputy Commissioner for Patent Examination Policy) will speak. At 10:00 AM, Robert Clarke (Office of Patent Legal Administration) will speak on Section 102(e). At 12:15 PM, Nicholas Godici (Commissioner of Patents) will give the luncheon address. Location: Wyndam Washington DC, 1400 M Street, NW.
Tuesday, July 16
9:30 AM. The FCC will hold a meeting. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
LOCATION CHANGE. 10:00 AM. The Senate Banking Committee will hold a hearing. Federal Reserve Board Chairman Alan Greenspan will deliver his semi annual report on monetary policy. See also, media advisory regarding procedures for covering this hearing. Press contact: Jesse Jacobs at 202 224-1654. Location: Room 216, Hart Building.
10:00 AM. The Senate Finance Committee will hold a hearing to examine homeland security and international trade issues. Location: Room 215, Dirksen Building.
2:00 PM. The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts will hold a hearing to examine the FBI's computer hardware problems. Press contact: Mimi Devlin at 202 224-9437. Location: Room 226, Dirksen Building.
Deadline to submit reply comments to the FCC regarding its Notice of Proposed Rulemaking (NPRM) regarding the consequences of the FCC's classification of cable modem service as an information service. This is CS Docket No. 02-52. See, FCC release [PDF] and notice in Federal Register.
Wednesday, July 17
10:00 AM. Federal Reserve Board Chairman Alan Greenspan will testify before the House Financial Services Committee. He will deliver his semi annual report on monetary policy. See, notice. Location: Room 2128, Rayburn Building.
1:00 - 4:00 PM. The Department of Commerce's (DOC) Technology Administration will host a workshop on digital entertainment and its availability to consumers. Phil Bond (Under Secretary of Commerce for Technology) and James Rogan (Director of the USPTO) will co-host the event. For more information, contact Chris Israel, Deputy Assistant Secretary for Technology Policy, at 202 482-5687. See, notice in the Federal Register. Location: Room 4830, Hoover Building, 1401 Constitution Ave., NW.
Extended deadline to submit reply comments to the FCC in response to its notice of proposed rulemaking regarding its unbundling analysis under § 251 of the Communications Act and the identification of specific unbundling requirements for incumbent local exchange carriers. See, May 29 order [PDF] extending deadline from June 5 to July 17. See also, notice in the Federal Register. This is CC Docket No. 01-338.