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January 30, 2003, 9:00 AM ET, Alert No. 594.
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Federal Circuit Rules in Rambus v. Infineon
1/29. The U.S. Court of Appeals (FedCir) issued its split opinion [MS Word] in Rambus v. Infineon, a patent infringement case involving dynamic random access memory (DRAM) products. The Court of Appeals vacated the District Court's judgment of non-infringement, as a matter of claim construction. It also reversed the District Court's denial of a motion to set aside a jury verdict of fraud based on failure to disclose patent and patent application information to a standard setting body.

Introduction. In addition to claim construction issues, this case involves Rambus's participation in what was known as the Joint Electron Device Engineering Council (JEDEC). This body developed and issued technical standards for a form of computer memory known as synchronous dynamic random access memory (SDRAM), and later, double data rate (DDR) SDRAM. Rambus attended meetings for years, but did not disclose that it had pending patent applications that, when granted, might contain claims that would be infringed by devices made pursuant to the standards being developed. A trial jury of the District Court returned a verdict of fraud against Rambus based upon this non-disclosure conduct. The opinion of the Court of Appeals overturns this. However, Rambus still faces a Federal Trade Commission (FTC) administrative complaint, based upon essentially the same facts, but which alleges violation of antitrust law.

Background. Rambus is a Delaware corporation based in Los Altos, California, that develops and licenses memory technologies to companies that make semiconductor memory devices. It does not actually produce semiconductors. Infineon is one company that makes semiconductor products.

District Court. In 2000, Rambus filed a complaint in U.S. District Court (EDVa) against Infineon alleging infringement of four of its patents, U.S. Patent 5,954,804, U.S. Patent No. 5,953,263, U.S. Patent No. 6,034,918, and U.S. Patent No. 6,032,214. Infineon counterclaimed for fraud under Virginia state law, based upon Rambus's non-disclosure to the JEDEC of its patents and patent applications related to the SDRAM and DDR-SDRAM standards.

The District Court granted judgment as a matter of law (JMOL) of non-infringement in favor of Infineon. The trial jury returned a verdict that Rambus committed fraud during both the SDRAM and DDR-SDRAM standardization process. Rambus moved for JMOL of no fraud, and alternatively, for a new trial. The District Court denied this motion as to the SDRAM standard, but granted it as to the DDR-SDRAM standard (on the basis that Rambus had left the JEDEC before work officially began on the DDR-SDRAM standard). The District Court further granted an injunction against Rambus, and awarded Infineon attorneys fees. Both parties appealed.

Appeals Court. A three judge panel of the Court of Appeals vacated the judgment of non-infringement, and remanded the issue of infringement to the District Court. The Court was unanimous on this issue.

Judge Randall Rader wrote the opinion of the Court, in which Judge William Bryson joined. Recently appointed Judge Sharon Prost dissented in part, on the fraud issue.

Judge Rader wrote that "because substantial evidence does not support the implicit jury finding that Rambus breached the relevant disclosure duty during its participation in the standards committee, this court reverses the denial of JMOL that let the fraud verdict stand."

He reasoned that "To prove fraud in Virginia, a party must show by clear and convincing evidence: 1) a false representation (or omission in the face of a duty to disclose), 2) of a material fact, 3) made intentionally and knowingly, 4) with the intent to mislead, 5) with reasonable reliance by the misled party, and 6) resulting in damages to the misled party. ... A party's silence or withholding of information does not constitute fraud in the absence of a duty to disclose that information."

Then, after a lengthy analysis of the evidence regarding the JEDEC's policies with respect to duties to disclose, he concluded that "In this case there is a staggering lack of defining details in the EIA/JEDEC patent policy. When direct competitors participate in an open standards committee, their work necessitates a written patent policy with clear guidance on the committee's intellectual property position. A policy that does not define clearly what, when, how, and to whom the members must disclose does not provide a firm basis for the disclosure duty necessary for a fraud verdict. Without a clear policy, members form vaguely defined expectations as to what they believe the policy requires -- whether the policy in fact so requires or not. JEDEC could have drafted a patent policy with a broader disclosure duty. It could have drafted a policy broad enough to capture a member’s failed attempts to mine a disclosed specification for broader undisclosed claims. It could have. It simply did not." 

He then concluded that the evidence does not support, by clear and convincing evidence, the jury's verdict that Rambus breached its duties under the JEDEC's policy.

Finally, Judge Rader also wrote in the opinion of the Court, that, as a result of the rulings on non-infringement and fraud, the District Court's injunction is moot, and the award of attorneys fees is vacated.

Prost Dissent. Judge Prost wrote in her lengthy dissent on the fraud issue that "substantial evidence supports the jury's verdict that Rambus committed actual fraud under Virginia state law."

Rambus attended its first JEDEC meeting in December 1991 and became a member in February 1992. At the time Rambus joined JEDEC, it had several pending patent applications derived from the ’898 patent application, which has spawned more than a thousand claims in dozens of continuation and divisional applications. Rambus also had a specific plan for using its pending patent applications against anyone using the SDRAM standard. ... Rambus did not, in fact, inform anyone at JEDEC about its pending patent applications by the end of 1992. Instead, Rambus continued to attend JEDEC meetings for three more years, watching the SDRAM standard evolve and then amending its patent applications to try to cover features of the standard."

She continued that "The record is replete with additional and specific instances of Rambus employees attending JEDEC meetings, taking notes of what was discussed, identifying instances where Rambus already had claims covering what was discussed, and then seeking claims to cover what they learned at the JEDEC meetings. Yet Rambus ``did not tell the people at JEDEC that what they were proposing for standardization infringed [its] patents.´´"

FTC Antitrust Action Against Rambus. Rambus' legal troubles are not over. The Federal Trade Commission (FTC) also has an open proceeding against Rambus. It arises out of the same set of facts. However, it is based upon allegations of violation of federal antitrust law, not the Virginia law of fraud.

On June 19, 2002, the FTC filed an administrative complaint against Rambus alleging anti-competitive behavior in violation of Section 5 of the Federal Trade Commission Act (FTCA) in connection in the JEDEC standards setting process. The complaint alleges that Rambus "has illegally monopolized, attempted to monopolize, or otherwise engaged in unfair methods of competition in certain markets relating to technological features necessary for the design and manufacture of a common form of digital computer memory, known as dynamic random access memory, or ``DRAM.´´"

The FTC alleges that Rambus engaged in anticompetitive behavior by "participating in the work of an industry standard setting organization, known as JEDEC, without making it known to JEDEC or to its members that Rambus was actively working to develop, and did in fact possess, a patent and several pending patent applications that involved specific technologies proposed for and ultimately adopted in the relevant standards. By concealing this information -- in violation of JEDEC's own operating rules and procedures -- and through other bad faith, deceptive conduct, Rambus purposefully sought to and did convey to JEDEC the materially false and misleading impression that it possessed no relevant intellectual property rights."

Section 5 of the FTCA, codified at 15 U.S.C. § 45, provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." See also, story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

Sean Royall, Deputy Director of the FTC's Bureau of Competition, and lead trial counsel, stated in a release on January 29, 2003 that "Our trial team is reviewing the Federal Circuit's decision to determine what if any bearing it may have on the Commission's federal antitrust suit against Rambus. However, given the significant differences in the factual and legal issues raised by the FTC's antitrust claims and Infineon's fraud claims, we do not expect that this ruling will have a substantial impact on our case going forward."

The FTC also noted that Virginia law requires a heightened "clear and convincing evidence" standard or proof, while the FTC is merely to required to satisfy a lower "preponderance of the evidence" standard of proof in the administrative proceeding.

The administrative proceeding is scheduled for hearing on April 9, 2003.

Rambus Reaction. Geoff Tate, CEO of Rambus, stated in a release that "We are pleased by today's rulings ... Today's rulings help substantiate the importance of our past inventions and allow us to continue our focus on technology leadership."

John Danforth, SVP and General Counsel of Rambus, stated that "Today's rulings are not just about Rambus ...They greatly illuminate a wide range of issues related to standards setting and intellectual property. We believe that the Federal Circuit has done a thorough job of clarifying these issues and that their work merits close attention."

SEC Files Complaint Against KPMG and Partners Re Xerox Audits
1/29. The Securities and Exchange Commission (SEC) filed a civil complaint in U.S. District Court (SDNY) against KPMG and four KPMG partners, Joseph Boyle, Michael Conway, Anthony Dolanski, and Ronald Safran, alleging securities fraud in connection with their auditing of Xerox's accounting. See also, SEC release.

The complaint alleges that KPMG and "certain KPMG partners permitted Xerox Corporation (``Xerox´´) to manipulate its accounting practices and fill a $3 billion ``gap´´ between actual operating results and results reported to the investing public from 1997 through 2000. The fraudulent scheme allowed Xerox to claim it met performance expectations of Wall Street analysts, to mislead investors and, consequently, to boost the company's stock price. The KPMG defendants were not the watch dogs on behalf of shareholders and the public that the securities laws and the rules of the auditing profession required them to be."

The complaint continues that "Instead of putting a stop to Xerox's fraudulent conduct, the KPMG defendants themselves engaged in fraud by falsely representing to the public that they had applied professional auditing standards to their review of Xerox's accounting, that Xerox's financial reporting was consistent with Generally Accepted Accounting Principles (``GAAP´´) and that Xerox's reported results fairly represented the financial condition of the company. There was no watchdog at Xerox. KPMG's bark sounded no warning to investors; its bite was toothless."

The four count complaint alleges (1) violations of Section 17(a) of the Securities Act and Section 10(b) and Rule 10b-5 of the Exchange Act, (2) violation of Section 10A of the Exchange Act, (3) aiding and abetting violations of Section 13(a) of the Exchange Act and Exchange Act Rules 13a-1, 13a-13, and 12b-20, and (4) aiding and abetting violations of Section 13(b) of the Exchange Act and Exchange Act Rule 13b2-1.

House Commerce Committee Members Write FCC in Opposition to UNE-P
1/29. Twenty-two members of the House Commerce Committee wrote a letter [5 page PDF scan] to the Federal Communications Commission (FCC) regarding unbundled network elements.

They wrote that "The '96 Act prescribed three methods of competitive entry for CLECs: reselling an ILEC's service, using a CLEC's facilities exclusively, and using a CLEC's facilities in combination with an ILEC's facilities through the purchase of unbundled network elements from the ILEC. However, the FCC distorted the '96 Act's requirements to manufacture a fourth method of entry by creating the unbundled network element platform or UNE-P -- in essence a back-door way of forcing the ILECs to resell the entire local phone service. To further exacerbate the problem, the FCC developed a pricing model  for the UNE-P that is based on a hypothetical cost model rather than on actual operating costs."

"As a result," the Congressmen wrote, "the FCC created a regulatory fiction that provided CLECs with a disincentive to invest in their own facilities. No competing carrier has an incentive to risk capital and invest in its own facilities when it can simply lease an ILEC's network elements at below-cost prices and resell the service."

They argued that "the UNE-P is a regulatory fiction that must be eliminated." They also argued that "in the context of the Triennial Review, the FCC must produce a sensible national policy regarding which network elements meet the '96 Act's stringent ``necessary and impair´´ analysis and, therefore, must be provided on an unbundled basis. Delegation of that determination to the states would be a gross abdication of the FCC's statutory responsibility and a clear violation of the law."

They also listed several "elements that should not have to be provided on an unbundled basis", including "circuit switching" and "fiber loops and subloops used to transmit packet-based services".

The letter was signed by Billy Tauzin (R-LA), John Dingell (D-MI), Fred Upton (R-MI), Joe Barton (R-TX), Nathan Deal (R-GA), Richard Burr (R-NC), John Shimkus (R-IL), Vito Fossella (R-NY), Roy Blunt (R-MO), Steve Buyer (R-IN), Mary Bono (R-CA), Lee Terry (R-NE), Charles Bass (R-NH), Greg Walden (R-OR), George Radanovich (R-CA), Rick Boucher (D-VA), Edolphus Towns (D-NY), Bobby Rush (D-IL), Al Wynn (D-MD), Eliot Engel (D-NY), Gene Green (D-TX), and Chris John (D-LA).

FCC Amends Cable Home Wiring Rules
1/29. The Federal Communications Commission (FCC) released its First Order on Reconsideration and Second Report and Order [59 pages in PDF] in its proceeding titled "In the Matter of Telecommunications Services Inside Wiring Customer Premises Equipment In the Matter of Implementation of the Cable Television Consumer Protection and Competition Act of 1992; Cable Home Wiring". This is CS Docket No. 95-184 and MM Docket No. 92-260.

This document pertains to the FCC's rules that are intended to foster opportunities for multichannel video programming distributors (MVPD) to provide service in multiple dwelling unit buildings (MDU) by establishing procedures regarding how and under what circumstances the existing cable home run wiring would be made available to alternative video service providers.

The document states that the FCC now amends its rules "to provide (1) that, in the event of sale, the home run wiring be made available to the MDU owner or alternative provider during the 24-hour period prior to actual service termination by the incumbent, and (2) that home run wiring located behind sheet rock is physically inaccessible for purposes of determining the demarcation point between home wiring and home run wiring."

This document also states that "We decline to restrict exclusive contracts for the provision of video services in MDUs, finding that the record does not demonstrate a need for government intervention with marketplace forces and privately negotiated contracts. Similarly, we decline to ban perpetual contracts for the provision of video services in MDUs or subject such contracts to a fresh look window."

Commissioner Kevin Martin wrote a statement in which he dissented in part. He wrote that "I am not persuaded that we have the statutory authority to regulate ``home run´´ wiring. .. I question whether these general provisions authorize the Commission to regulate the disposition of that part of a cable wire that runs from the demarcation point in a multiple dwelling unit to the point at which the wiring becomes devoted to an individual subscriber. Moreover, the interpretation of these provisions in this item offers no limitation on our authority, and thus I am not sure what this interpretation would not allow us to do."

People and Appointments
1/29. Jule Sigall was named the Copyright Office's Associate Register for Policy and International Affairs, effective February 10. He was previously an attorney in the Intellectual Property and Technology practice group of the law firm of Arnold & Porter. Before that, in 1997-1998, he worked in the Copyright Office's Office of Policy and International Affairs.

1/29. Ted Turner will step down as Vice Chairman of AOL Time Warner, effective at the Annual Shareholders Meeting in May. See, release.

1/29. The Wall Street Journal wrote an article stating that William Esrey, Sprint's Ch/CEO, will step down, and that Gary Forsee, currently at BellSouth, "is expected to succeed him." Sprint stated in a release that "Sprint has declined to comment on media speculation regarding management succession." BellSouth's biography of Forsee states that he is Vice Chairman, and is "responsible for all of BellSouth's domestic operations". He also previously worked for Sprint.

1/29. Richard Smith was named acting Chief of the Policy Division of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau (CGB). Nancy Stevenson was named Acting Deputy Chief.  The appointments are effective during the time that Michele Walters, Chief of the Policy Division, is on parental leave. See, FCC release [MS Word].

1/29. Under Secretary of the Treasury for Enforcement Jimmy Gurulé will leave his position on February 10. See, Treasury release and resignation letter.

1/29. President Bush nominated six people to be U.S. District Court Judges: Richard Bennett (Maryland), Louise Flanagan (Eastern District of North Carolina), Leon Holmes (Eastern District of Arkansas), James Selna (Central District of California), Philip Simon (Northern District of Indiana), and Theresa Springmann (Northern District of Indiana). See, White House release. Judge Selna is a former O'Melveny & Myers partner who focused on antitrust law. He was appointed to the Superior Court of the State of California for Orange County in 1998. See, Court bio [PDF].

More News
1/29. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) released its 2003 Foreign Policy Report. The BIS, which is still also referred to as the Bureau of Export Administration (BXA), announced in this report that it extends its foreign policy export controls to January 20, 2004. The report covers, among many topics, high performance computers (at Chapter 9) and encryption products (at Chapter 10).

1/29. The Federal Trade Commission (FTC) published a notice in the Federal Register containing its final amended Telemarketing Sales Rule (TSR), and its Statement of Basis and Purpose. The FTC announced its amended TSR last month. This notice sets effective dates. The amended rule will become effective March 31, 2003. However, full compliance with the caller identification transmission provision is required by January 29, 2004. Also, the FTC will announce later the date by which full compliance with the ``do-not-call´´ registry provision will be required. See, Federal Register, January 29, 2003, Vol. 68, No. 19, at Pages 4579-4679. See also, FTC release.

1/29. The U.S. Court of Appeals (7thCir) issued its split opinion [9 pages in PDF] in AT&T Broadband v. IBEW, holding that the Norris LaGuardia Act, 29 U.S.C. §§ 101-15, forbids a District Court from enjoining the arbitration of a labor dispute. The International Brotherhood of Electrical Workers (IBEW) contended that AT&T Broadband had failed to negotiate in good faith to reach agreements covering three bargaining units. It demanded arbitration under a master agreement between AT&T and the IBEW. AT&T argued that the master agreement called for mediation rather than arbitration. The IBEW called upon the presiding neutral of a standing arbitral body. AT&T then filed a complaint in U.S. District Court (NDIll) seeking an injunction of the arbitration.

1/29. Federal Trade Commission (FTC) announced that it filed an administrative complaint against Educational Research Center of America, Inc. and Student Marketing Group, Inc., as well as two individual officers and directors, alleging violation of the Federal Trade Commission Act. The complaint states that "respondents have collected personal information from high school and middle and junior high school students through surveys ..." It further states that "respondents have represented, expressly or by implication, that information collected from students through the Surveys is shared only with colleges, universities, and other entities providing education-related services. ... In truth and in fact, information collected from students through the Surveys is shared not only with colleges, universities, and other entities providing education-related services, but also with commercial entities for marketing purposes." The FTC and respondents also entered into an Agreement Containing Consent Order which bars future misrepresentation, requires disclosure of how information will be used, and requires destruction of certain data already collected. However, there is no fine. See also, FTC release.

House Commerce Committee Passes Do Not Call Registry Bill
1/29. The House Commerce Committee approved by unanimous voice vote, without amendment, HR 395, the Do-Not-Call Implementation Act. The bill is sponsored by Rep. Billy Tauzin (R-LA), the Chairman of the Committee, and Rep. John Dingell (D-MI), the ranking Democrat.

This bill authorizes the Federal Trade Commission (FTC) to collect fees for the implementation and enforcement of its "do-not-call" registry. The FTC released its amended Telemarketing Sales Rule (TSR) on December 18, 2002, which included creation of the do-not-call registry. This allows consumers to opt out of receiving unwanted telephone solicitations. It also prohibits telemarketers from calling those telephone numbers listed on the registry.

While the final vote was unanimous, opposition was voiced during debate. For example, Rep. Ted Strickland (D-OH) argued that telemarketing provides jobs for people who work in call centers, and this bill threatens those jobs. He added that with decreasing costs for international calls, these jobs are already being threatened by foreign based call centers.

Also, Rep. Joe Barton (R-TX) offered, but then withdrew, two proposed amendments. One would have provided that no category of calls would be automatically exempted. The other would have reduced the fine for violations from $11,000 per incident to $1,000 per incident. He acknowledged that his amendments lacked support on the Committee.

Rep. Tauzin responded that by including an exemption for political solicitations, the rule will be less likely to be overturned by the Courts as a violation of the First Amendment.

Rep. Tauzin Discusses Possible Legislation
1/29. Rep. Billy Tauzin (R-LA), Chairman of the House Commerce Committee, spoke with reporters after the Committee's mark up session on January 29. He discussed possible legislation related to broadband and the transition to digital television.

He was asked whether another "Tauzin Dingell bill" would be introduced in the 108th Congress. He responded that "before we file any bills, we are trying to see just how far the FCC will go, and how much they will complete. And, we are getting a better sense of that as we move along."

Rep. Billy TauzinRep. Tauzin (at right) added that "the industry has a number of other issues besides broadband. And, the industry, long distance, local, the whole kit and caboodle of them, are attempting to find some consensus for us on several of the key issues. We give them a chance to do that. I have given them until February 15th to report to my Committee on any consensus they reach in these areas, to see if we can, and possibly add those consensus features to whatever bill we file. But, we will be, in all likelihood, filing another bill."

Rep. Tauzin also stated that "I will be consulting with Sen. McCain, obviously. He has offered broadband bills in the past." He elaborated that "I want to go back and examine those, and meet with him, and discuss with him, what of those provisions are still important, and which he is interested in. He is a strong deregulator, as I am, and I think we will find a lot of common ground before we begin moving. John Dingell is again committed to work with me to see if we can pass these in the House."

He was also asked whether the House Commerce Committee would request the FCC Commissioners to testify on matters such as the pending triennial review. He responded that "We are getting a good feel for that without formal hearings. And we are learning from them and their staffs what they are doing and what they think they might. I frankly want to get a good read on what they are likely to be able to do before we proceed. Once I know that I will feel comfortable enough to proceed."

He added that he speaks with FCC Chairman Michael Powell and the other Commissioners. "We stay in close touch. And our staffs are also staying in touch."

He was also asked about the digital television transition. He stated that "It is still very very controversial here. My compliments to all the players, however. I mean, we made great progress in the last year."

"But, it still remains controversial in a number of key points, and they still need to work out a number of things. What we will do this year is, with some degree of patience, to continue to press them forward on their own negotiations. But, at some point, recognizing that if we don't legislate before August, we are not likely to be able to legislate. At some point in the next several months we may in fact want to legislate in those areas were it is clear they are not going to be able to reach an agreement. I would be delighted to find out that that is not necessary. And we will be pushing to that end."

He also discussed the timeline for any DTV related legislation. He said that he has not given the parties involved in negotiations a deadline, "other than the fact that they know we reached the point last year where we forwarded out some, a draft piece of legislation, in order to give them a look a what legislation would look like, if in fact they reached final agreement. That alone prompted a number of agreements, as you know, as you saw. There was some real progress made between the time we left Congress last year and the time we convened again -- some of it very positive. And, I continue to get good reports. So, I don't know that we need to give any hard deadlines yet, except , I think that all of the players know that I am working under some very tight time constraints in terms of what we can have time to pass into law before we get into a Presidential year cycle. They know that. I know that. So, without stating a time limit, everybody knows that we are under the gun to get something done."

Thursday, January 30
8:30 AM. Rep. Sherwood Boehlert (R-NY), Chairman of the House Science Committee, will give a speech to the University Research Associates. Location: Lecture Room, National Academy of Sciences, 2101 Constitution Ave., NW.

9:30 AM. The Senate Commerce Committee will hold a hearing to examine media ownership, focusing on consolidation in the radio industry. Location: Room 253, Russell Building.

9:30 - 11:30 AM. The Institute for Information Infrastructure Protection (I3P) will release a report titled "2003 Cyber Security Research and Development Agenda". The speakers will include Richard Clarke (Chairman of the President's Critical Infrastructure Protection Board), Michael Vatis (Chairman of I3P), Catherine Allen (CEO of BITS, Financial Services Roundtable), Robert Holleyman (P/CEO of the Business Software Alliance), and Harris Miller (President of the Information Technology Association of America). The I3P is a consortium of 23 cyber security research organizations, from academia, national labs and nonprofit institutions. The report will identify areas requiring research and development. Location: JW Marriott Hotel, 14th St. & Pennsylvania Ave., NW.

9:30 AM. The Senate Judiciary Committee will hold a business meeting to consider pending calendar business. The agenda includes consideration of the nomination of Miguel Estrada to be a Judge of the U.S. Court of Appeals (DCCir), consideration of S 151, the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act) which pertains to virtual pormography, and consideration of  S 153, the Identity Theft Penalty Enhancement Act. See, notice. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Armed Services Committee will hold a hearing to examine the nominations of Paul McHale to be an Assistant Secretary of Defense for Homeland Security, and Christopher Henry to be Deputy Under Secretary of Defense for Policy. Location: Room 216, Hart Building.

10:00 AM. The Senate Finance Committee will meet. It will vote on the nomination of John Snow to be Secretary of the Treasury. Location: 215 Dirksen Building.

10:00 AM. David Dorman, CEO of AT&T, will speak on the future of the telecommunications industry. Location: National Press Club, Zenger Room, 529 14th St. NW, 13th Floor.

4:00 PM. The Cato Institute will host an event titled "Who Are the Real Free Traders in Congress?" to release a study of voting records on trade issues. The speakers will be Rep. Tom Petri (R-WI), Sen. Sam Brownback (R-KS), and Dan Griswold (Cato). See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

Friday, January 31
12:00 NOON. The Progress & Freedom Foundation (PFF) will host a briefing titled "The FCC & Telecom Recovery: A Scorecard for Evaluating the Rules". The speakers will be Randolph May (PFF), Thomas Lenard (PFF), Solveig Singleton (Competitive Enterprise Institute), Adam Thierer (Cato Institute), and Jeffrey Eisenach (PFF). RSVP to Rebecca Fuller at 202 289-8928 or Location: Room B-340, Rayburn Building.

12:00 NOON. The Federalist Society will host a lunch titled "Antitrust and IP". For more information, contact Jessi King at 822-8138. Location: First Amendment Lounge, National Press Club, 529 14th St. NW, 13th Floor.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft publication [78 pages in PDF] titled "Guidelines for the Security Certification and Accreditation of Federal Information Technology Systems". This is NIST Special Publication 800-37. It was written by Ron Ross and Marianne Swanson in the NIST's Information Technology Laboratory's Computer Security Division, with input from others. Send comments to

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) on whether it should change its rules restricting telemarketing calls and facsimile advertisements. This is CG Docket No. 02-278. See, original notice in the Federal Register, earlier notice of extension [PDF], and further notice in Federal Register of extension.

Deadline to submit applications to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee. For more information, contact Scott Marshall at 202 418-2809

Monday, February 3
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Bell Communications v. Fore Systems, No. 02-1083. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) in the proceeding titled "In the matter of Facilitating the Provision of Spectrum Based Services to Rural Areas and Promoting Opportunities for Rural Telephone Companies To Provide Spectrum Based Services". This is WT Docket No. 02-381. For more information, contact Robert Krinsky at 202 418-0660. See also, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 723 - 730.

EXTENDED TO FEBRUARY 18. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking, (FNPRM), released last month, regarding whether providers of various services and devices not currently within the scope of the FCC's 911 rules should be required to provide access to emergency services. This is CC Docket No. 94-102 and IB Docket No. 99-67. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Pages 3214 - 3220. See also, notice of extension.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding the form, content, and manner of service of notices of termination under Section 203 of the Copyright Act. 17 U.S.C. § 203 pertains to the termination of transfers and licenses granted by the author. See, notice in the Federal Register, December 20, 2002 Vol. 67, No. 245, at Pages 77951 - 77955. For more information, contact David Carson, CO General Counsel, at 202 707-8380.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding MSC.Software's December 30, 2002, petition [8 page PDF scan] for approval of its proposed divestiture of Nastran software to EDS. The petition is titled "Petition of MSC.Software Corporation for Approval of Proposed Divestiture". It was filed in the FTC's administrative proceeding titled "In the Matter of MSC.Software Corporation". This is FTC Docket No. 9299. In August 2002, the FTC and MSC also entered into an Agreement Containing Consent Order [22 pages PDF] which provides that MSC must divest at least one copy of its current advanced Nastran software, including the source code. The divestiture will be through royalty free, perpetual, non-exclusive licenses to one or two acquirers who must be approved by the FTC. For more information, contact Daniel Ducore of the FTC's Bureau of Competition at 202 326-2526.

Tuesday, February 4
? Tentative date for a hearing at the USPTO to assist it in writing a report to the Congress regarding technological protection systems for digitized copyrighted works and to prevent infringement. This report is required by the Technology, Education and Copyright Harmonization Act of 2002 (TEACH). See, notice in the Federal Register, December 9, 2002, Vol. 67, No. 236, at Pages 72920 - 72921. For more information, contact Michael Shapiro at 703 305-9300 or
Wednesday, February 5
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Altima Communications v. USITC, No. 02-1110. The U.S. International Trade Commission barred the import by Altima Communications, a Broadcom subsidiary, of certain ethernet networking products found to infringe Intel patents. Fish and Richardson represents Intel in this matter. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Crossroads Systems v. Chaparral Network Storage, No. 02-1158. This is an appeal from the U.S. District Court (WDTex) in a  patent infringement case involving storage router technology. (D.C. No. 00-CA-217-SS.) Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Digital Privacy v. RSA Security, No. 02-1440. This is an appeal from the U.S. District Court (EDVa) in a patent infringement case involving the pre-boot protection of unauthorized use of computer programs and data. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM. The Cato Institute will host a panel discussion titled "Battle over the Broadcast Flag: The IP Wars and the HDTV Transition". The speakers will be Fritz Attaway (Motion Picture Association of America), Jim Burger (Dow Lohnes & Albertson), Mike Godwin (Public Knowledge), and Andy Setos (Fox Entertainment Group). See, notice and registration page. Lunch will follow. Location: Cato, 1000 Massachusetts Ave., NW.

1:00 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet
will hold a hearing titled "Health of the Telecommunications Sector: A Perspective from Investors and Economists". See, notice. Location: Room 2123, Rayburn Building.

Thursday, February 6
3:30 PM. Madhavi Sunder (Professor of Law, University of California at Davis Law School) will give a lecture titled "IP3: Intellectual Property, Identity Politics, and the Internet Protocol". For more information, contact Julie Cohen at Location: Georgetown University Law Center, Faculty Lounge, 600 New Jersey Ave., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding BellSouth's December 20, 2002 Petition for Forbearance [16 pages in PDF] from application of the separate subsidiary requirements to provide international directory assistance service. BellSouth asked the FCC to forbear from applying the structural separation requirements of 47 U.S.C. § 272 to allow BellSouth to provide international directory assistance service on an integrated basis together with its local and nonlocal directory assistance services. See, FCC notice [2 pages in PDF]. This is CC Docket No. 97-172.


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