| 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´´ to
mean a communication that is publicly distributed by a
television station, radio station, cable television system, or
satellite system. The term ``distribute´´ 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´´
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.´´ She replied,
``No. Television and radio.´´ 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. |
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| 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. |
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| 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. |
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| 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. |
|
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| 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. |
|
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| 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. |
|
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| 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. |
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| 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. |
|
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| 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]. |
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| 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. |
|
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| 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. |
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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 ’Net -- 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. |
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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’t Fully Understand".
Location: Hyatt Regency, Capitol Room, Lobby Level. |
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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’s 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’s 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’s 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. |
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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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