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February 18, 2003, 9:00 AM ET, Alert No. 606.
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Representatives Introduce Bill To Authorize Nanotech R&D Funding
2/13. Rep. Sherwood Boehlert (R-NY), Rep. Mike Honda (D-CA), and others introduced HR 766, the National Nanotechnology Research and Development Program. It would authorize the appropriation of $2.1 Billion over three years for nanotechnology research and development programs at the National Science Foundation (NSF), Department of Energy (DOE), Department of Commerce's (DOC) National Institute of Standards and Technology (NIST), National Aeronautics and Space Administration (NASA), and Environmental Protection Agency (EPA). The majority of the funding would go to the NSF.

The bill would also require the President to implement "a National Nanotechnology Research and Development Program to promote Federal nanotechnology research, development, demonstration, education, technology transfer, and commercial application activities as necessary to ensure continued United States leadership in nanotechnology research and development and to ensure effective coordination of nanotechnology research and development across Federal agencies and across scientific and engineering disciplines."

The Program created by the bill would "provide sustained support for nanotechnology research and development" and "expand education and training of undergraduate and graduate students". In addition, it would establish "a research program to identify societal and ethical concerns related to nanotechnology, and ensuring that the results of such research are widely disseminated".

Rep. Mike HondaRep. Honda (at right) stated in a release that "Nanotechnology will have a dramatic impact on society, and it is critical that the U.S. has structures in place that allow us to assess and understand technical issues, as well as the social, ethical, philosophical, and legal issues that will arise."

On January 8, Rep. Honda introduced HR 283, the Nanoscience and Nanotechnology Advisory Board Act of 2003. See, story titled "Rep. Honda Introduces Nanotechnology Bill", TLJ Daily E-Mail Alert No. 582, January 14, 2003. HR 766 would also create an advisory committee.

Also, on January 16, 2003, Sen. Ron Wyden (D-CA) introduced S 189, the 21st Century Nanotechnology Research and Development Act. Rep. Boehlert stated in a release that "We've already been having conversations with both the Senate and the White House about nanotechnology, and I'm hopeful we can get a bill enacted this year. We will try to move the bill through the Science Committee before the April recess." Rep. Boehlert is Chairman of the House Science Committee.

See also, House Science Committee summary of HR 766 [MS Word].

Representatives Introduce Bill to Exempt Lawyers from GLB Privacy Provisions
2/13. Rep. Judy Biggert (R-IL), Rep. Carolyn Maloney (D-NY) and others introduced HR 781, a bill to exempt attorneys from the privacy provisions of the Gramm Leach Bliley (GLB) Act.

Rep. Carolyn MaloneyRep. Maloney (at right) submitted a statement for publication in the Congressional Record (Feb. 13, 2003, at E238-9). "This legislation resolves the controversy as to whether attorneys at law, who are subject to strict codes of professional conduct, should be subject to the privacy section of the Gramm Leach Bliley Act (GLBA). The Biggert Maloney legislation recognizes that the practice of law and the business of financial services are wholly different and that GLBA should be clarified to recognize this distinction."

She added that "The privacy protections in Title V of GLBA were a response to specific cases where consumers' private, personal financial information was mined without their consent in an effort to market products. Where Title V is an appropriate response to such cases, it is inappropriate to apply it to most lawyers whose clients already expect that all their disclosures are confidential, covered by state codes of ethics and attorney client privilege."

Rep. Biggert also submitted a statement for the Congressional Records (Feb. 13, 2003, at E244). She said that "in order to comply with the privacy provisions under Gramm Leach Bliley, these attorneys now run the risk of violating the client-confidentiality restrictions placed on their profession."

"Why is that? Well, under the FTC interpretation, every attorney who engages in any of the four defined ``financial activities´´ for a non-corporate client must mail to that client a privacy notice -- every year, for as long as he or she is in practice. And what does that privacy notice convey? Well, it informs clients that they may direct their attorney not to share their personal information with other entities -- the so-called ``opt-out´´ provision of Gramm Leach Bliley. Yet the attorney client confidentiality relationship is, by nature, an, ``opt-in´´ protection. In short, for attorneys, the very act of disclosing a privacy policy can create a confidentiality violation."

Reps Biggert and Maloney introduced similar legislation late in the 107th Congress. See, HR 5457.

Federal Circuit Rules in Altiris v. Symantec
2/12. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in Altiris v. Symantec, a patent infringement case involving software that controls the computer boot process.

Altiris is the holder of U.S. Patent No. 5,764,593 titled "Method and system for the interception and control of the computer boot process". The invention is the use of software to allow a network administrator working from the network server to remotely access individual network computers as they are booted. This enables network administrators to update or install software. Prior to the '593 patent, this could be accomplished through the serial installation of hardware.

Altiris filed a complaint in U.S. District Court (DUtah) against Symantec alleging infringement of the '593 patent. After a Markman hearing, the District Court issued an order construing the claim limitations at issue. Based upon these claim limitations, the parties stipulated to Symantec's noninfringement of the '593 patent. The District Court then granted summary judgment of non-infringement. Altiris appealed the District Court's claims construction. The Court of Appeals vacated and remanded on the grounds that the District Court court erred in the construction of each of the five claim limitations giving rise to the grant of summary judgment.

Federal Circuit Sanctions Appellant for Frivolous Appeal
2/12. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in Phonometrics v. Westin Hotel, a frivolous appeal from a summary judgment in a patent infringement case.

Phonometrics is the holder of U.S. Patent No. 3,769,463, which claims, in relevant part, "An electronic solid state long-distance telephone call cost computer apparatus ... comprising: ... call cost register means, including a digital display, for providing a substantially instantaneous display of cumulative call cost in dollars and cents".

Phonometrics filed a complaint in U.S. District Court (SDFl) against Westin Hotel alleging the Westin's hotel room telephones infringe the '463 patent. It argued, among other things, that Westin's printed paper notices constitute a "digital display". The District Court granted summary judgment to Westin. Phonometrics appealed. This is the latest in a series of appeals brought by Phonometrics attempting to enforce this patent.

The Appeals Court was neither convinced, nor amused, by Phonometric's arguments. It affirmed the District Court, ruled that Phonometric's arguments were "frivolously unmeritorious", and sanctioned Phonometrics, and its attorney, John Sutton, $3,000.

DC Circuit Revises Opinion in 21st Century Telesis v. FCC
2/14. The U.S. Court of Appeals (DCCir) issued a revised opinion [PDF] in 21st Century Telesis v. FCC. See, also, opinion of January 31, 2003.

The Federal Communications Commission (FCC) canceled 19 broadband licenses held by 21st Century Telesis following its failure to make timely payments on its licenses. 21st Century petitioned for review of FCC orders determining that it was provided adequate notice before cancellation of its licenses, and declining to consider its late filed arguments that the automatic cancellation rule exceeds the FCC's statutory authority and as applied violates due process.

On January 31, the Court of Appeals ruled that "Because 21st Century's challenges to the automatic cancellation of its C block licenses are either moot or unripe, 21st Century lacks standing to bring those challenges, and we dismiss that part of the petition. Because 21st Century fails to show with respect to its F block licenses either that the Commission abused its discretion under 47 U.S.C. § 405 and 47 C.F.R. § 1.106(f) by declining to consider late filed hearing arguments, thus making it improper for the court to address those contentions, or that the Commission failed to provide sufficient notice of 21st Century's payment obligations, we deny the petition in part."

On February 14, the Court of Appeals concluded that "because 21st Century lacks standing to challenge the cancellation of its C block licenses, we dismiss that portion of its appeal; because 21st Century’s hearing contentions are not properly before the court, as 21st Century failed to exhaust its administrative remedies by timely presenting its hearing arguments to the Commission, and its notice contentions fail in light of record evidence that it had sufficient notice of its payment obligations, we affirm the orders of the Commission."

The revised opinion also changes all references to petition for review to appeal.

Trade News
2/14. Kenneth Dam, Deputy Secretary of the Treasury, gave a speech to the Atlantic Council in Washington DC titled "A Fresh Perspective on U.S. EU Economic Relations". He stated that "If you've been reading the financial press on a regular basis, you might think the United States and the EU were fighting a transatlantic trade war." But, he said, "The facts tell a different story. In the last decade, the U.S. EU economic relationship, when measured as trade plus investment, has swelled into the largest and most complex on earth. U.S. investors are deeply invested in Europe’s growth, and vice-versa." He added that, "In any event, the real action today in international trade is not in the WTO dispute settlement process, but in the new Doha Round of negotiations. There we have put on the table unprecedented proposals for the reduction of barriers in both agricultural and industrial products." He went on to discuss financing of terrorism.

2/14. U.S. Trade Representative (USTR) Robert Zoellick will be in the PR China from February 17 through 21. He will meet with Vice Premier Wen Jiabao and Ministry of Trade and Economic Cooperation (MOFTEC) Minister Shi Guangsheng. The Office of the USTR stated in a release that he will "discuss the WTO's impact on China, ongoing economic reforms, bilateral trade issues and current global trade negotiations".

Tuesday, February 18
The House, Senate and Supreme Court are in recess.

Most offices in Washington DC are closed due to a heavy snowfall.

POSTPONED DUE TO SNOW. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in AT&T v. FCC, No. 01-1485. Judges Tatel, Garland and Williams will preside. Location: 333 Constitution Ave., NW.

POSTPONED DUE TO SNOW. 4:00 PM. Michael Meurer (Boston University School of Law) will present a paper titled "Sharing Copyrighted Works". For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 720 20th Street, NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding titled "In the Matter of Digital Broadcast Copy Protection". This NPRM proposes that the FCC promulgate a broadcast flag rule, and seeks comment on this, and related questions. This is MB Docket No. 02-230. See, FCC release [PDF] and Order [PDF] of October 11, 2002 extending deadlines. See also, Order [PDF] of January 3, 2003.

Deadline to submit reply 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 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, and notice of extension.

Wednesday, February 19
10:00 AM. BellSouth Ch/CEO Duane Ackerman will speak about the future of the telecommunications industry. For more information, contact Bill McCloskey at 202 463-4129. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor.

11:15 AM - 2:00 PM. Secretary of the Treasury John Snow will speak at a joint National Chamber Foundation and Policy Insiders luncheon. See, notice. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "The Role of In House Counsel". For more information, contact Yaron Dori at or Ryan Wallach at Location: Conference Room of Willkie Farr & Gallagher, 1875 K St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The topic will be FCC antitrust merger reviews. The speakers will include Jim Bird (head of the Federal Communications Commission's (FCC) Office of General Counsel's (OGC) Transactional Team) and Jim Barker (Latham & Watkins). For more information, contact Lauren Kravetz at 202 418-7944 or Location: FCC, Room 4-B516.

1:00 PM. Deputy Secretary of Commerce Sam Bodman will to speak to a convention of over 350 aspiring engineers from middle schools on the importance of science and technology. Location: Capitol Hill Hyatt Regency.

Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the exemption of certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works, pursuant to 17 U.S.C. § 1201. See, CO summary of this proceeding, notice in the Federal Register: October 15, 2002, Vol. 67, No.199, at Pages 63578 - 63582, and comments already filed.

Thursday, February 20
9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM - 12:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet. A notice in the Federal Register states that the purpose of this meeting is "to begin preparations for the meeting of the ITU Telecommunications Development Advisory Group, which will take place March 19-21, 2003 in Geneva, Switzerland", and/or "to prepare for the 2003 meeting of the Telecommunications Development Advisory Group (TDAG)". The notice also states requirements for admission. See, Federal Register, February 6, 2003, Vol. 68, at Page 6250. Location: State Department.

9:00 - 11:30 AM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Interoperability Subcommittee will meet at the FCC. Location: FCC, 445 12th Street, SW.

12:30 - 3:00 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Technology Subcommittee will meet. Location: FCC, 445 12th Street, SW.

3:00 - 5:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Implementation Subcommittee will meet. Location: FCC, 445 12th Street, SW.

Friday, February 21
9:00 AM. The Alliance for Public Technology (APT) will host a policy forum and awards luncheon. The scheduled speakers include Rep. Sylvester Reyes (D-TX), Bruce Mehlman (Assistant Secretary of Commerce for Technology Policy), Kyle Dixon (Special Counsel to FCC Chairman Powell for Broadband Policy), and William Kennard (former FCC Commissioner), and Brett Perlman (Commissioner of the Texas Public Utilities Commission). The program, which is titled "2003 Broadband Forum: Delivering the Promise: Strategies for Universal Broadband Deployment", begins at 9:15 AM. The luncheon is at 12:00 NOON. The policy forum is free; the luncheon is a fundraiser. See, APT notice. Location: National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee will meet. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Page 3252. Location: FCC, 445 12th Street, SW.

Deadline to submit reply 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.

Monday, February 24
The Senate will return from its one week recess at 12:00 NOON. The Supreme Court will return from the recess which it began on January 27.

3:00 PM. The Federal Communications Commission's (FCC) Federal State Joint Conference on Accounting Issues will hold a public meeting. See, FCC notice [MS Word]. Location: FCC, Commission Meeting Room (Room TW-C305), at 445 12th Street, SW.

Deadline to submit comments to the The National Telecommunications and Information Administration (NTIA) regarding the state uniform commercial code exception to the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The Act provides, at §101, for the acceptance of electronic signatures in interstate commerce, with certain enumerated exceptions. §103 of the Act provides that the provisions of section 101 shall not apply to "the Uniform Commercial Code, as in effect in any State, other than sections 1-107 and 1-206 and Articles 2 and 2A". The Act also requires the NTIA to review, evaluate and report to Congress on each of the exceptions. The E-SIGN Act is codified at 15 U.S.C. § 7001, et seq. The exceptions are codified at 15 U.S.C. § 7003. See, notice in the Federal Register, December 24, 2002, Vol. 67, No. 247, at Pages 78421 - 78423.

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