|House CIIP Subcommittee Holds Hearing on
4/3. The House Judiciary
Committee's Subcommittee on Courts, the Internet and Intellectual Property
(CIIP) held a hearing on
HR 1561, the
"United States Patent and Trademark Fee Modernization Act of 2003".
This bill would raise patent and trademark fees. It is cosponsored by
Lamar Smith (R-TX) and Rep. Howard
Berman (D-CA), the Chairman and ranking
Democrat on the CIIP Subcommittee. The hearing also focused on the diversion of
U.S. Patent and Trademark Office (USPTO) fees
to subsidize other government programs, patent pendency, patent
quality, the proposed outsourcing of patent searches, and the USPTO's
Smith (at right) read a
prepared statement. He said that "The fee
schedule has been developed in large part based on funding shortfalls at the
agency that have resulted from revenue diversion. Everyone in this room is aware
of the ongoing appropriations practice of using a portion of PTO fee revenue to
subsidize other programs unconnected to the agency. None of us like it, but
progress has been made in the past two or three years in curtailing fee
diversion. We all want an efficient and productive PTO that has the resources it
needs to serve the inventors and trademark holders of the United States."
Rep. Berman argued that "before we consider the issue of fee increases, it
seems to me, without taking a look at the issue of fee diversion, and to
understand where we all stand in terms of our commitment to end this practice.
Without a willingness from all of us, Members, interested parties, and the PTO,
to put in a sincere effort to end the diversion of PTO funds, I don't see the
logic of raising the fees. I have in the past, I am willing to now, to work for
this goal. But, I wouldn't expect my colleagues to champion a cause ... without
having the active participation and a firm commitment from all the influential
industry groups that want us to deal with this backlog, that are willing to
support a reasonable fee increase to increase the productivity, but don't
prioritize the goal of stopping the diversion."
"If you want to put in a freeze on the top tax bracket, I am fine with
you. If you want to increase the gas tax, I am fine with you. There are other
ways to find appropriation revenues for the federal government to spend on the
problems of the American people", said Rep. Berman. "But the notion that we are
going to take this foolish method, which is, we are going to tax innovation
through a substantial increase in fees, in order to actually divert it into more
general fund appropriations is the dumbest way to do it. And, I don't see why we
should be part of that process. I think we have to address the issue of
diversion. And, at least I am not persuaded that the administration at its
highest level is a partner in that effort."
Rep. Zoe Lofgren (D-CA), who
represents a Silicon Valley district, spoke in opposition to HR 1561. She said
that every year there are proposals to end the fee diversion, but it never ends.
She said that it is time to "follow the First Lady's advice -- just say no".
Lofgren (at right), continued that "I don't think I am going to vote to increase
any fees until we get this stopped. I think the fee increase for a diversion is
simply a tax on innovation. And the technology sector, the inventors, are
willing to pay their income tax, and they are willing to pay the increased fees
for the patent office. I just don't think it is appropriate to pass them on".
"At a time when the tech sector is flat on it back is not the time to
continue to short the patent office", said Rep. Lofgren. "I am not going to vote
for this until we get a solution for it."
Rep. Berman and Rep. Lofgren also argued that the Congress and interested
parties have not gotten serious about this issue. Rep. Lofgren said that
"We have never really gotten serious", while Rep. Berman said that "I don't
think that there has been a serious attempt" to end fee diversion. He
characterized prior efforts as "rhetorical flourishes" and bill introductions.
Rep. Lofgren said that support for ending fee diversion is bipartisan. Rep.
Berman added that Republicans can be supportive because they do not like
tax increases, while Democrats can be supportive because of they want to assist
James Rogan, Director of the
U.S. Patent and
Trademark Office's (USPTO), testified regarding the USPTO's
Strategic Plan and advocated enactment of a new fee bill. He described the
introduction of HR 1561 as "a critical step".
He warned that "The consequences of failing to enact the fee bill and giving
the USPTO access to those fees will mean quality and pendency will continue to
significantly suffer. We will be unable to hire needed examiners, and over
140,000 patents will not issue over the next five years. The inventory of
unexamined patent applications will skyrocket to a backlog of over one million
applications by 2008 -- more than double the current amount -- and pendency (as
measured from the time of filing) will jump to over 40 months average in the
next few years." See,
He also opposed putting a sunset provision in the fee increase bill.
Michael Kirk, Executive Director of the American
Intellectual Property Law Association (AIPLA), stated that the USPTO is "in
crisis". He elaborated that "To date, over
$650,000,000 in patent and trademark fees paid by PTO users have been diverted
from, rescinded, or made unavailable to the Office. Quality has suffered. Large
and small companies are increasingly being subjected to litigation (or its
threat) on the basis of questionable patents. Patent applicants are encountering
longer delays in obtaining protection for valuable new technologies."
He said he supports the fee increase bill.
"Failure to enact an appropriate fee bill to fund a sound
Strategic Plan is not an option." However, he said that he also
supports a sunset provision. "Should there be no progress
in eliminating diversion in the next three fiscal years, then
the higher fees would end on September 30, 2006, and
applications filed after that date would be assessed fees at the
rates set in the current fee schedule."
He also said that "we believe that separating
search and examination makes no sense. This requires two individuals to
familiarize themselves with the details of the invention -- one to search and
the other to examine. That is not as efficient as having one person responsible
for both search and examination."
John Williamson testified on behalf of the
Intellectual Property Owners Association (IPO). He said that the IPO
supports "paying for the plan by raising patent and trademark fees to the level
proposed in the draft legislation if Congress appropriates an amount to the PTO
for fiscal year 2004 equal to projected fee collections, and provided certain
technical changes are made." See,
He also advocated outsourcing of patent searching. He said that "outsourcing
could have benefits, for example, by enabling faster elimination of PTO backlogs
and encouraging development of private search companies with high levels of
expertise in specific technologies. We support the outsourcing initiative
provided there is adequate testing and evaluation."
Ronald Stern, President of the Patent Office
Professionals Association (POPA), opposed the outsourcing of patent
|House Financial Services Committee Holds
Hearing on Information Security
4/3. The House Financial
Services Committee's Subcommittee on Financial Institutions and Consumer
Credit and Subcommittee on Oversight and Investigations held a joint hearing
titled "Fighting Fraud: Improving Information Security".
Kevin Mitnick, a convicted hacker, testified regarding thieves
who gain unauthorized access to computer networks and their databases containing
credit card information. He stated in his
testimony [6 pages in PDF] that "these types of attacks happen quite
frequently" and "will continue to be attractive to electronic criminals as long
as credit-card details are stored by businesses connected to the Internet."
He added that many "attacks on networks containing financial
information are not detected by the owner or operator. It is important to
realize that many of these security incidents remain undetected because of poor
security and auditing practices."
He recommended that "attempting to solve the complex problem by
micro-managing every online site that accepts credit card transactions would
turn out to be a wasteful, inefficient, and not very successful exercise.
Instead, I recommend that the committee look in a different direction. I
recommend that you explore mitigation strategies which focus on improving the
authentication of the credit card user."
James Farnan, Deputy Assistant Director of the Federal Bureau of
Investigation's (FBI) Cyber Division addressed investigation and prosecution of
internet fraud and online identity theft in his
testimony [PDF]. He also addressed "cyber terrorism,
terrorist threats, foreign intelligence operations, and criminal activity
precipitated by illegal computer intrusions into U.S. computer networks,
including the disruption of computer supported operations and the theft of
sensitive data via the Internet. The FBI assesses the cyber-threat to the U.S.
to be rapidly expanding, as the number of actors with the ability to utilize
computers for illegal, harmful, and possibly devastating purposes is on the
Rep. Mike Oxley
(R-OH), the Chairman of the full Committee, wrote in his
statement [PDF] that "consumers will quickly lose confidence in our
nationwide credit system if we don’t do everything practical to improve security
and protect sensitive data. ... Improving information security has to be one of
our top priorities in protecting the confidentiality and integrity of our
[19 pages in PDF] of Howard Beales, Director of the
Bureau of Consumer Protection of the Federal Trade
Commission (FTC). And see,
web page with hyperlinks to opening statements of Representatives and prepared
testimony of other witnesses.
|Greenspan Addresses Role of Information
Technology in Financial Education
4/3. Federal Reserve Board (FRB)
Greenspan gave a
speech titled "Financial Education" at the JumpStart Coalition's annual
meeting in Washington DC. He discussed the role of information technologies.
He stated that "as technological advances have contributed significantly to
the dramatic changes within the financial services market, consumers more
generally must be familiar with the role that computers play in the conduct of
every traditional financial transaction, from withdrawing funds to gaining
access to credit."
He continued that "just as universities provide remote learning options to
allow students to pursue continuing education via the Internet, consumers can
use software to create customized budgets to develop long-term savings
strategies for retirement or for their children's college education. In both
scenarios, technological advances represent the opportunity for achieving
efficiencies and exercising preferences, but only when the end users possess the
knowledge necessary to access pertinent information and to capitalize on it."
He concluded that "Building bridges between community organizations, our
educational institutions, and private businesses will be an essential aspect of
our efforts to increase familiarity with new technological and financial tools
that are fundamental to improving individual economic well-being. And the
success of such efforts will bear significantly on how well prepared our society
is to meet the challenges of an increasingly knowledge based economy."
4/3. The U.S. Court of Appeals
(4thCir) heard oral argument in Sun Microsystems v. Microsoft, No.
Court (Maryland) issued a preliminary injunction against Microsoft in this
antitrust action. The District Court held in its December 23, 2002
[42 pages in PDF] that Microsoft must carry the latest Java runtime environment
on any product carrying Microsoft's .NET, including Windows XP. Microsoft appealed. The Court
of Appeals has stayed the preliminary injunction. See,
Corrected Order [2 pages in PDF].
4/3. The Federal Communications Commission's (FCC)
Bureau (WCB) announced that it has implemented its new Electronic ARMIS Filing
System (EAFS). See,
release [MS Word].
4/3. Deputy U.S. Trade Representative (USTR)
Peter Allgeier announced that the U.S. will contribute $1 Million to a voluntary
World Trade Organization (WTO) Global Trust
Fund to provide technical assistance for developing country trade capacity
building efforts. See,
4/2. The Federal Communications Commission (FCC)
issued an Order
[PDF] dismissing a request for a declaratory ruling that all emissions associated with digital
circuitry used to generate ultrawideband (UWB) emissions are required to meet
the radiated emission limits provided in Subpart F of Part 15 of the FCC's rules
for UWB transmitters. The FCC wrote that "the Commission has been clear in its
recent decisions that the standard specified in Section 15.521(c) applies to
emissions from all digital circuitry contained within UWB transmitters. As long
as these emissions are not intended to be radiated from the antenna, they are
subject to the limits specified in Section 15.209.
|USTR Releases US Chile FTA
4/3. The Office of the
U.S. Trade Representative (USTR) released a
text of the U.S.
Chile free trade agreement (FTA). It is a large document. Several chapters
pertain specifically to technology and communications. See especially,
Chapter 15 [3
pages in PDF] pertaining to electronic commerce, and
Chapter 17 [32
pages in PDF] regarding intellectual property rights,
Chapter 13 [16
pages in PDF] regarding telecommunications, and
[3 pages in PDF] regarding transparency.
Intellectual Property. The FTA contains detailed
provisions pertaining to a wide range of intellectual property rights (IPR)
issues, including domain name disputes, domain name databases, trademark
protection, copyright, anticircumvention, rights management information,
patents, enforcement of intellectual property rights, and limitations on
liability of internet service providers.
With respect to domain names, the FTA provides that "Each Party
shall require that the management of its country-code top level domain (ccTLD)
provide an appropriate procedure for the settlement of disputes, based on the
principles established in the Uniform Domain-Name Dispute-Resolution Policy (UDRP),
in order to address the problem of trademark cyber-piracy." It also
provides that "Each Party shall, in addition, require that the management of its
respective ccTLD provide online public access to a reliable and accurate
database of contact information for domain-name registrants, in accordance with
each Party’s law regarding protection of personal data."
The FTA also addresses anticircumvention in detail. It begins by
stating that "In order to provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are
used by authors, performers, and producers of phonograms in connection with the
exercise of their rights and that restrict unauthorized acts in respect of their
works, performances and phonograms, protected by copyright and related rights:
(a) each Party shall provide that any person who knowingly
circumvents without authorization of the right holder or law consistent
with this Agreement any effective technological measure that controls access to
a protected work, performance, or phonogram shall be civilly liable and, in
appropriate circumstances, shall be criminally liable, or said conduct shall be
considered an aggravating circumstance of another offense." The FTA then goes on
to address procedures and remedies, permissible exceptions, accidental
circumvention, and other anticircumvention issues.
Electronic Commerce. The FTA contains a brief section on
electronic commerce. It provides that "Neither Party may apply customs duties on
digital products of the other Party transmitted electronically." It also
provides that neither party may accord less favorable treatment to the digital
products of the other in certain enumerated circumstances.
For example, the FTA provides that "A Party shall not accord
less favorable treatment to a digital product than it accords to other like
digital products, on the basis that: (a) the digital product receiving less
favorable treatment is created, produced, published, stored, transmitted,
contracted for, commissioned, or first made available on commercial terms in the
territory of the other Party; or (b) the author, performer, producer, developer,
or distributor of such digital products is a person of the other Party."
Telecommunications. The chapter on telecommunications
addresses access to public telecommunications networks and services under
reasonable and non-discriminatory terms, interconnection, unbundled network
elements, colocation, and resale.
The telecommunications chapter also addresses information services. It
provides that "Neither Party may require an enterprise in its territory that it
classifies as a supplier of information services (which supplies such services
over facilities that it does not own) to: (a) supply those services to the
public generally; (b) cost-justify its rates for such services; (c) file a
tariff for such services; (d) interconnect its networks with any particular
customer for the supply of such services; or (e) conform with any particular
standard or technical regulation for interconnection for the supply of such
services other than for interconnection to a public telecommunications network."
However, the FTA provides a competition law exception.
This chapter also addresses independent telecommunications regulators,
dispute resolution, judicial review, and universal service. It only briefly
touches upon spectrum management and rights of way management.
|FCC Fines Broadcaster for Indecency,
4/3. The Federal Communications Commission
(FCC) issued a
Notice of Apparent Liability (NAL) to Infinity Broadcasting Operations, the
licensee of WKRK-FM in Detroit, Michigan, for broadcasting indecent material. (A
transcript is in the NAL.) The FCC proposed a forfeiture of $27,500. See also,
The NAL also concluded with the statement that "We take this opportunity to
note that given the egregiousness of this violation, additional serious
violations by Infinity may well lead to the initiation of a revocation
proceeding. Moreover, other broadcasters are on notice that the Commission
will not hesitate to adopt strong enforcement actions in the future, including
the potential initiation of revocation
18 U.S.C. § 1464
provides that "Whoever utters any obscene, indecent, or profane language by
means of radio communication shall be fined under this title or imprisoned not
more than two years, or both."
Commissioner Michael Copps
dissented. He wanted a license revocation hearing in this proceeding. He wrote,
"The extreme nature of this broadcast -- among the worst we
have faced in the Commission's history -- and the fact that it was
broadcast in the middle of the day, gives the FCC the responsibility to take
serious action. I dissent from the majority's decision because I
believe that a financial slap on the wrist does not
adequately reflect the seriousness of the station's actions. To
fulfill our duty under the law, we should initiate a hearing
to determine whether the WKRK-FM license should be revoked. I am deeply
disappointed that the majority proposes a mere $27,500 fine against
this station. Such a fine will easily be absorbed by the
station as a ``cost of doing business.´´"
|Friday, April 4
Day one of a two day conference hosted by the University of Maryland's
Center for Intellectual Property titled "Copyright in the Digital Age:
Challenges Facing the Academy". The
includes sessions on the TEACH Act, peer to peer file copying, and the DMCA.
Location: Greenbelt Marriott, Maryland.
8:00 AM. Phil Bond,
Under Secretary of Commerce for the
Technology Administration (TA), will deliver a speech titled "Growth
and Policy Implications of Nanotechnology" at the National Nanotechnology
Initiative 2003 Conference. See,
notice. For more information,
contact Connie Correll at
202 482-1065. Location: Omni Shoreham Hotel, 2500 Calvert St, NW.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Sprint Corp v. FCC, No.
02-1129. Judges Sentelle, Rogers and Garland will preside. Location: 333
Constitution Ave., NW.
12:15 - 1:30 PM. The Federal Communications
Bar Association's (FCBA) Wireless Telecommunications Committee will host a
luncheon. The speaker will be John Muleta, Chief of the
Federal Communications Commission's (FCC)
Wireless Telecommunications Bureau. The
price to attend is $15. Cancellations and/or RSVPs are due by 5:00 PM on
Tuesday, April 1. RSVP to Wendy Parish at
firstname.lastname@example.org. Location: Sidley Austin,
1501 K Street, NW, Conference Room 6E.
6:00 PM. Deadline to submit applications to the
National Telecommunications and Information
Administration (NTIA) for planning and construction grants for public
radio and nonbroadcast
facilities under the Public
Telecommunications Facilities Program (PTFP). See,
notice in the Federal Register, March 5, 2003, Vol. 68, No. 43, at Pages
10609 - 10615.
|Sunday, April 6
Daylight savings time begins.
|Monday, April 7
The Intellectual Property Owners Association (IPO) will
hold a Committee Leadership Meeting. For more information, call 202 466-2396.
Location: Ronald Reagan International Trade Center.
DEADLINE EXTENDED TO APRIL 17.
Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its
Notice of Inquiry (NOI) [MS Word] regarding "Additional Spectrum for
Unlicensed Devices Below 900 MHz and in the 3 GHz Band". Unlicensed devices
would include, among other things, 802.11. See,
notice in Federal Register, January 21, 2003, Vol. 68, No. 13, at Pages
2730-2733. See also, story titled "FCC Announces Notice of Inquiry Re More
Spectrum for Unlicensed Use" in
TLJ Daily E-Mail
Alert No. 566, December 12, 2002. For more information, contact Hugh Van
Tuyl in the FCC's Office of Engineering & Technology at
email@example.com or 202 418-7506. This
is OET Docket No. 02-380. See,
notice of extension [PDF].
Deadline to submit comments to the Office of the
U.S. Trade Representative (USTR) regarding
the establishment of a petition process to review eligibility of countries for
the benefits of the Andean Trade Preference Act. See,
notice in Federal Register, February 4, 2003, Vol. 68, No. 23, at Pages
|Tuesday, April 8
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Public Service Commission of
Colorado v. FCC, No.
02-1163. Judges Rogers, Garland and Silberman will preside. Location: 333
Constitution Ave., NW.
9:30 AM. The Senate Rules and
Administration Committee will hold an oversight hearing on
the Library of
Congress and the Congressional
Research Service. Location: Room 301, Russell Building.
12:30 PM. Ted Turner will give a luncheon speech. Location:
Ballroom, National Press Club, 529 14th
St. NW, 13th Floor.
4:00 PM. Ellen
Goodman will present a draft paper titled "Spectrum Rights in the
Telecosm to Come". For more information, contact
at 202 994-6138 or
firstname.lastname@example.org. Location: George Washington University Law
School, Faculty Conference Center, Burns Building, 5th Floor, 720 20th Street,
|Wednesday, April 9
10:00 AM. The House Commerce
Committee's Subcommittee on Telecommunications and the Internet will meet
to mark up
HR 1320, the Commercial Spectrum Enhancement Act. Webcast.
Location: Room 2123, Rayburn Building.
10:00 AM. The U.S. Court of Appeals
(FedCir) will hold oral argument in First Graphics v. M.E.P. CAD,
No. 02-1469, an appeal from the U.S.
District Court (NDIll). Location: Courtroom 402, 717 Madison Place, NW.
|Thursday, April 10
The Progress & Freedom Foundation (PFF),
a Washington based think tank that focuses on technology and communications
issues, will hold its 10th anniversary celebration.
Director of the Office of Management
and Budget (OMB), will be the after dinner speaker. For more information,
contact Jane Creel at 202 289-8928 or
email@example.com. See, PFF
notice. Location: Renaissance Mayflower Hotel.
Day one of a two day conference hosted by the
American Association for the Advancement of
Science (AAAS) titled "Colloquium on Science and Technology Policy". See,
agenda [PDF]. Location:
Washington Plaza Hotel, 10 Thomas Circle, 14th and M Streets, NW.
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