Tech Law Journal Daily E-Mail Alert
August 5, 2002, 9:00 AM ET, Alert No. 484.
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FEC Proposes Rules that Exclude Webcasts from Electioneering Communications
8/2. The Federal Election Commission (FEC) released a second Notice of Proposed Rulemaking (NPRM) [67 pages in MS Word] regarding the Bipartisan Campaign Reform Act of 2002 (BCRA), the recently enacted campaign finance reform legislation. This NPRM pertains to "electioneering communications". The proposed rules would exempt webcasts.
These electioneering communications include broadcast, cable and satellite communications that refer to a clearly identified federal candidate within 60 days of a general election or within 30 days of a primary election for federal office, and for candidates for the Senate or House of Representatives, targeted to reach 50,000 or more people within the jurisdiction of a campaign. Those paying for the communications must meet certain disclosure requirements, and cannot use certain funds.
The NPRM states that "Proposed 11 CFR 100.29(b)(2) would define ``broadcast, cable, or satellite communication创 to mean a communication that is publicly distributed by a television station, radio station, cable television system, or satellite system.  The term ``distribute创 reflects the legislation's apparent focus on the means of dissemination rather than on the means of receipt."
The NPRM continues that "The definition would exclude ``webcasts创 or other communications that are distributed only over the Internet, but would include television or radio communications that are simultaneously webcast over the Internet, or archived for listening over the Internet. Internet subscribers would not be included in the calculation of how many persons a communication can reach in a particular district or state. The Commission seeks comment on whether this is an appropriate reading of the statute."
It further states that "The legislative history, which is discussed below, makes it clear that this regulation should be limited to television and radio. The Commission seeks comment to confirm that this interpretation is correct. All other types of communications, such as print media, billboards, telephones, and the Internet, would therefore, not be considered electioneering communications. Consequently, proposed 11 CFR 100.29(c)(1) would specifically list these as exceptions to the definition."
The NPRM states also in a later section that "The Internet is included in the above list of exceptions because, in most instances, it is not a broadcast, cable, or satellite communication, and it is not sufficiently akin to television and radio. During an early debate on the amendment, Senator Snowe was asked whether the definition of electioneering communication would ``apply to the Internet.创 She replied, ``No. Television and radio.创 See 144 Cong. Rec. S973 and S974 (daily ed. Feb. 25, 1998)(statement of Sen. Snowe). The Commission seeks comment confirming that this is a correct interpretation of BCRA."
The NPRM does not specifically address the classification of webcasting over a cable or satellite platforms.
The NPRM also announces that the FEC will hold public hearings on this NPRM on August 28-29. Written comments from those who request to testify at the hearing must be received by August 21. All other comments are due by August 29. See also, FEC release.
Federal Circuit Issues Split Decision in Inventorship Case
8/1. The U.S. Court of Appeals (FedCir) issued its split opinion in Trovan v. Sokymat, a patent infringement case involving the issue of inventorship.
Trovan is the owner of  U.S. Patent No. 5,281,855 titled "Integrated circuit device including means for facilitating connection of antenna lead wires to an integrated circuit die". That is, it involves passive transponders. The patent lists Leonard Hadden and Glen Zirbes as inventors.
Trovan filed a complaint in U.S. District Court (CDCal) against Sokymat alleging patent infringement. Sokymat argued that one Ake Gustafson is a co-inventor and co-owner of the patent, and that the patent is invalid and unenforceable because Gustafson was omitted as a co-inventor with deceptive intent. The District Court held that Gustafson is not a co-inventor and co-owner.
The Appeals Court vacated and remanded. Judge Linn wrote the opinion of the Court. Judge Michel dissented.
More Federal Circuit Opinions
8/1. The U.S. Court of Appeals (FedCir) issued its opinion in Honeywell v. Victor, a patent infringement case involving Honeywell's U.S. Patent No. 4,425,501, titled "Light Aperture for a Lenslet Photodetector Array," which relates to autofocus cameras. The Appeals Court reversed in part, affirmed in part, and remanded.
8/1. The U.S. Court of Appeals (FedCir) issued its opinion in Allen Engineering v. Bartell Industries, a patent infringement case involving riding trowels. The Appeals Court addressed the issues of claim construction, the on sale bar, and inequitable conduct before the Patent and Trademark Office. This case pertains to U.S. Patent No. 5,108,220, which related to riding trowels, which are machines used to smooth the surface of freshly poured concrete. The Appeals Court reversed the District Court's judgment of infringement, and remanded.
Former Cisco Employee Pleads Guilty to Wire Fraud
7/30. The U.S. Attorneys Office (NDCal) announced that Robert Gordon plead guilty to two counts of wire fraud in violation of 18 U.S.C. 1343, and one count of insider trading in violation of 15 U.S.C. 78j(b) and 78ff(a), and 17 C.F.R. 240.10b-5.
On May 9, 2001, a grand jury of the U.S. District Court (NDCal) returned an original indictment against Gordon, a former Cisco Systems employee. He transferred stock owned by Cisco to himself, and induced Cisco to provide money to Spanlink, a Cisco affiliated start-up company, so that he could fraudulently obtain money from Spanlink.
The USAO also announced that it recovered over $20 million in funds fraudulently taken by Gordon. Sentencing is scheduled for October 29, 2002, at 10:00 AM. See, USAO release.
Former Adaptec VP Indicted for Insider Trading
7/30. The U.S. Attorneys Office (NDCal) announced that a grand jury of the U.S. District Court (NDCal) returned an indictment of Michael Ofstedahl alleging insider trading of Adaptec securities, and related charges, in violation of 15 U.S.C. 78j and 78ff and 17 C.F.R. 240.10b-5. The USAO also announced that it charged Robert Rutner in a criminal information with one count of insider trading in Adaptec securities. Ofstedahl had also been previously indicted.
Ofstedahl is a former Vice President of Adaptec, a maker of storage products for networks, servers, workstations and desktops. It is based in Milpitas, California. See, USAO release.
People and Appointments
8/2. President Bush announced his intent to nominate Wayne Abernathy to be Assistant Secretary of the Treasury for Financial Institutions. Abernathy has worked for the Senate Banking Committee since 1981. See, White House release.
More News
8/3. President Bush stated that he will sign the trade promotion authority bill on Tuesday, August 6. See, transcript of speech.
8/2. EU Trade Commissioner Pascal Lamy commended the U.S. Congress for passing trade promotion authority legislation. He stated in a release that "The jury may have been out for a long time, but it is now back with a clear decision giving clean negotiating authority to the US administration. Today's decision removes an important roadblock to the Doha Development Agenda in particular. Now we have to use this important development to generate real momentum in these negotiations".
8/2. The Technology Administration (TA) published a notice in the Federal Register listing the current membership of the TA's Performance Review Board (PRB). This PRB reviews performance appraisals, agreements, and recommended actions pertaining to employees in the Senior Executive Service, and reviews performance related pay increases for ST-3104 employees. See, Federal Register, August 2, 2002, Vol. 67, No. 149, at Page 50422.
7/29. The U.S. Attorneys Office (NDCal) announced that Lawrence Jou plead guilty to one count of conspiracy to infringe copyrights in violation of 18 U.S.C. 371, and three counts of copyright infringement in violation of 18 U.S.C. 2319. Jou sold counterfeit Microsoft software. See, USAO release and CCIPS release.
Monday, August 5
9:00 AM - 3:00 PM. The FCC's Spectrum Policy Task Force will hold a public workshop titled "Spectrum Efficiency". The first panel, titled "Efficiency Measures and Technology", will include David Weinreich (Globalstar), Richard Engelman (FCC), C.K. Toh (TRW), Ulrich Rohde (Synergy Microwave), Paul Rinaldo (Amateur Radio Relay League), Merrill Weiss (Merrill Weiss Group), Charles Trimble (AEA), Steve Gillig (Motorola), and Stephen Blust (Cingular). The second panel, titled "Policies and Rules", will include Preston Marshall (DARPA), Richard Engelman, Ron Haraseth (Automated Frequency Coordination), Brent Wilkins (Cantor Telecom), Gerald Faulhaber (Univ. of Pennsylvania), Mark Goldberg (ArrayComm), and Michael Fitch (Boeing). See, FCC notice [PDF]. Webcast. Location: FCC, Commission Meeting Room, 445 12th Street, SW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Advanced Communication Design v. Premier Retail Networks, No. 02-1271. This is an appeal from the U.S. District Court (DMinn) in a patent infringement case. Location: 717 Madison Place, NW, Courtroom 402.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Creo Products v. Prestek, No. 01-1634. This is an appeal from the U.S. District Court (DDel) in a patent infringement case. Location: 717 Madison Place, NW, Courtroom 201.
10:30 AM EDT. Microsoft will host a conference call regarding its Microsoft Settlement Program. Brad Smith (SVP and General Counsel) and Charlie DeJong (Director of Business Development in the Windows Platform Group) will participate. See, MSFT release. Call 800 369-2119; the passcode is Microsoft.
1:00 PM. The President's Council of Advisors on Science and Technology (PCAST) will hold a meeting to discuss and approve a draft report to President Bush on the contribution of science and technology in the new Department of Homeland Security (DHS). PCAST is co-chaired by John Marburger (Director of the Office of Science and Technology Policy) and Floyd Kvamme (a partner at the venture capital firm of Kleiner Perkins). The meeting will take place via telephone conferencing. To participate, call 1 800 260-0712 and provide access code 647402. Also, a recording of the meeting will be available on Tuesday, August 6, 2002, from 8:00 AM to 5:00 PM. Call 1 800 475-6701 and provide access code 647402. See, notice in Federal Register.
Tuesday, August 6
Michigan primary election. Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee, and Rep. Lynn Rivers (D-MI) are running for the Democratic nomination in the same district.
Deadline to submit comments to the Customs Service in response to its notice of proposed rulemaking (NPRM) to amend the Customs Regulations pertaining to the importation of merchandise bearing a counterfeit mark to clarify the limit on the amount of a civil fine which may be assessed by Customs when merchandise bearing a counterfeit mark is imported. See, notice in the Federal Register.
Wednesday, August 7
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Honeywell International v. Hamilton Sundstrand, No. 02-1005. This is an appeal from the U.S. District Court (DDel) in a patent infringement case involving aircraft turbine engines in which the Court found Honeywell's patents valid, and awarded $46 Million in damages. Location: 717 Madison Place, NW, Courtroom 402.
Thursday, August 8
Day one of six of the American Bar Association's annual meeting. See, TLJ's complete listing of technology law related events. Location: various hotels across Washington DC.
9:00 AM. Qwest Communications will release its second quarter 2002 results at approximately 6:00 AM EDT. It will host a conference call at 9:00 AM EDT. The participants will include Ch/CEO Richard Notebaert and  VCh/CFO Oren Shaffer. The event will be web cast. See, Qwest release.
9:30 AM. The FCC will hold a meeting. The agenda includes three items: (1) consideration of a NPRM regarding digital broadcast copy protection; (2) consideration of a Second Report and Order and Second Memorandum Opinion regarding its policies and rules for conversion of the broadcast television service to digital technology; this is MM Docket No. 00-39; and (3) consideration of a Report and Order regarding various Part 22 rules that have become outdated due to technological change, increased competition in CMRS, or supervening rules; this is WT Docket No. 01-108. Press contact: Maureen Peratino or David Fiske at 202 418-0500. See, FCC release.
9:45 AM. The U.S. District Court (DC) will hold a meeting conference hearing in EPIC v. DOJ, D.C. No. 2002 cv 0063. The EPIC filed a complaint against the Justice Department and Treasury Department, pursuant to the under the Freedom of Information Act (FOIA), seeking records pertaining to the federal government's purchase of personal information of individuals from private sector database companies. Judge Colleen Kotelly will preside. Location: 333 Constitution Ave. NW, Courtroom 11.
Deadline to submit comment to the FCC regarding the NTIA's July 23 document titled "An Assessment of the Viability of Accommodating Advanced Mobile Wireless (3G) Systems in the 1710-1770 MHz and 2110-2170 MHz Bands". The FCC has incorporated this viability assessment into its Advanced Wireless Services proceeding in ET Docket No. 00-258. See, public notice [PDF].
Friday, August 9
Day two of six of the American Bar Association's annual meeting. See, TLJ's complete listing of technology law related events. Location: various hotels across Washington DC.
9:00 AM - 3:00 PM. The FCC's Spectrum Policy Task Force will hold a public workshop titled "Spectrum Rights and Responsibilities". First, Thomas Krattenmaker (Mintz Levin) will give an historical view of spectrum rights and responsibilities. Second, there will be a panel titled "New Technologies and Spectrum Usage Rights". The moderators will be Charla Rath (Verizon Wireless) and Paul Kolodzy (FCC); the panelists will be David Farber (University of Pennsylvania), David Siddall (Paul Hastings), Peter Pitsch (Intel), Victor Tawil (MSTV), Steve Sharkey (Motorola), Bruce Fette (General Dynamics), and Gee Rittenhouse (Lucent). Third, there will be a panel titled "Modeling Licensed and Unlicensed Spectrum Usage Rights". The moderators will be Michele Farquhar (Hogan & Hartson) and David Furth (FCC); the panelists will be Martin Cave (Warwick Business School), Tom Hazlett (Manhattan Institute), Steve Stroh (Focus On Broadband Wireless Internet Access), Michael Calabrese (New America Foundation), Larry Miller (LMCC/ AASHTO), David Wye (AT&T Wireless), Michael Kurtis (Kurtis & Associates), Jennifer Warren (Lockheed Martin), and Joe Gatusso (NTIA). See, FCC notice [PDF]. Webcast. Location: FCC, Commission Meeting Room, 445 12th Street, SW.
Saturday, August 10
Day three of six of the American Bar Association's annual meeting. See, TLJ's complete listing of technology law related events. Location: various hotels across Washington DC.
Sunday, August 11
Day four of six of the American Bar Association's annual meeting. See, TLJ's complete listing of technology law related events. Location: various hotels across Washington DC.
ABA Annual Meeting
August 8-13
See, ABA's convention web site and 2002 Annual Meeting Program [280 pages in PDF]. See also, TLJ's complete listing of technology law related events.
Events will be held at various hotels in Washington DC. Registration will be at the Marriot Wardman Park, at 2660 Woodley Road, NW. See, registration information. Pricing for CLE programs is based on a pay as you go basis.
Media Relations: 202 797-3828.
Highlights of ABA Meeting
Friday, August 9
11:00 AM. Program titled "Justice Department Takes Action Against Credit Card Companies For Unfair Trade Practices". Location: Mayflower, Senate Room, Promenade Level.
2:00 PM. Program titled "Whatever Happened to Broadband?" Location: Marriott Wardman Park, Cotillion Ballroom South, Mezzanine Level.
2:30 PM. Program titled "Antitrust and Intellectual Property for the Transactional Lawyer". Location: Hyatt Regency, Regency Foyer, Ballroom Level.
3:00 PM. Program titled "Adapting the Legal Requirements for Electronic Promissory Notes and Electronic Chattel Paper to Commercial Realities". Location: Hyatt Regency, Regency A, Ballroom Level.
3:45 PM. Program titled "Information Security: The Role of Law and Lawyers". Location: Marriott Wardman Park, Cotillion Ballroom South, Mezzanine Level.
Highlights of ABA Meeting
Saturday, August 10
9:00 AM. Program titled "Applied E-Risk Management: Real Problems, Real Solutions". Location: J.W. Marriott Capitol Ballroom Salon G, B Level.
9:30 AM. Program titled "The Boston Strangler Returns - A High Tech Hearing on the Murder of Mary Sullivan". Location: Marriott Wardman Park, Hoover, Mezzanine Level.
2:00 PM. Program titled "HIPAA Enforcement and Litigation Risk Management: The Crisis Ahead". Location: Marriott Wardman Park, Cotillion Ballroom South, Mezzanine Level.
2:00 PM. Program titled "The Virtual Lawyer: Law Practice on the 扤et -- Without a Net". Location: Marriott Wardman Park, Coolidge, Mezzanine Level.
2:30 PM. Program titled "Telemarketing and Cybermarketing at the Crossroads: Legislative and Regulatory Developments". Location: Hyatt Regency, Columbia A, Ballroom Level.
3:00 PM. Program titled "Securing and Enforcing Intellectual Property Rights Abroad: Recent Developments in International Protection of Patents, Copyrights and Trademarks". Location: Willard, Ballroom, Lower Level.
3:45 PM. Program titled "Cybercrime: An International Problem for Every Lawyer, Business and Country". Location: Marriott Wardman Park, Cotillion Ballroom South, Mezzanine Level.
Highlights of ABA Meeting
Sunday, August 11
9:30 AM. Program titled "Spying on Terrorists (and You): Public Needs v. Private Rights". Location: Marriott Wardman Park, Cotillion Ballroom South, Mezzanine Level.
10:30 AM. Program titled "Telemarketing and Cybermarketing at the Crossroads: Legislative and Regulatory Developments". Location: Hyatt Regency, Columbia A, Ballroom Level.
2:00 PM. Program titled "China -- IP Issues Of Olympic Proportions". Location: Marriott Wardman Park, Cotillion Ballroom North, Mezzanine Level.
2:00 PM. Program titled "Electronic Privacy and Surveillance in the 21st Century". Location: Marriott Wardman Park, Cotillion Ballroom South, Mezzanine Level.
2:30 PM. Program titled "Expert Witnesses in Antitrust Litigation: Making (or Breaking) Your Case". Hyatt Regency Ticonderoga, Ballroom Level.
2:30 PM. Program titled "Oops, I Did it Again: How Lawyers Might Inadvertently Violate Their Ethical Obligations by Using Technology They Don抰 Fully Understand". Location: Hyatt Regency, Capitol Room, Lobby Level.
Highlights of ABA Meeting
Monday, August 12
8:45 AM. Program titled "Is Washington Still the Center of the Antitrust Universe? Do the Supreme Court, the Congress and the Federal Enforcement Agencies Control the Agenda?" Location: Ritz-Carlton, The Plaza Ballroom, Lobby Level.
9:00 AM. Program titled "Securities Enforcement Then and Now: The SEC Under a New Administration". Location: Mayflower, Grand Ballroom, Promenade Level.
9:30 AM. Program titled "Privacy of Healthcare Information: What Every Attorney Should Know about HIPAA". Location: Marriott Wardman Park, Maryland Suite C, Lobby Level.
10:00 AM. Program titled "Patriot Games No Longer: Business Community抯 Role in Cybersecurity -- New Requirements and Evolving Practical Concerns for Business Lawyers". Location: Hyatt Regency, Ticonderoga, Ballroom Level.
10:30 AM. Program titled "Stolen Identities: Government and Industry Responses to Consumer Identity Fraud". Location: Hyatt Regency, Yorktown, Ballroom Level.
11:00 AM. Program titled "Foreign Trade Antitrust Improvements Act: How Does It Affect Washington抯 Dominance in the Antitrust Universe?" Location: Ritz Carlton, The Plaza Ballroom, Lobby Level.
1:30 PM. Program titled "Global Harmonization: Has There Been Any Progress in Relocating the Center of the Antitrust Universe?" Location: Ritz Carlton, The Plaza Ballroom, Lobby Level.
2:00 PM. Program titled "Internet and Other Electronic Information Access for Persons with Disabilities". Location: Marriott Wardman Park, Virginia Suite A, Lobby Level.
2:30 PM. Program titled "Reality Bytes? eContracting in Today抯 Environment". Location: Hyatt Regency, Congressional A, Lobby Level.
2:30 PM. Program titled "Recent Developments in Antitrust: A Global Review". Location: Hyatt Regency, Congressional B, Lobby Level.
3:45 PM. Program titled "Are States Invited to the Party? Federal Preemption of State Antitrust Law: Why Not?" Location: Ritz Carlton, The Plaza Ballroom, Lobby Level.
Highlights of ABA Meeting
Tuesday, August 13
8:30 AM. Program titled "The Antitrust Year in Review". Location: Ritz Carlton, The Plaza Ballroom, Lobby Level.
9:00 AM. Program titled "Cyber-Sleuthing: A Guide to Level Computer Assisted Discovery and Collection of Electronic Data". Location: Hilton Washington, Jefferson Ballroom East, Concourse Level.
12:00 PM. Event titled "Antitrust Luncheon: Developments in Federal Antitrust Enforcement 2002". Location: Ritz-Carlton, The Ritz Carlton Ballroom, Salon III, Lobby Level.
2:00 PM. Program titled "Developments in Merger Law and Policy 2002". Location: Ritz Carlton, The Plaza Ballroom, Lobby Level.
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