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July 10, 2003, 9:00 AM ET, Alert No. 695.
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House Judiciary Committee Approves USPTO Fee Bill

7/9. The House Judiciary Committee approved HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003".

On May 23, 2003, the Subcommittee on Courts, the Internet and Intellectual Property approved an amendment in the nature of a substitute. The full Committee approved this version, with a further amendment pertaining to outsourcing by the patent office. The bill would raise patent and trademark fees by a minimum of 15%.

The amendment in the nature of a substitute contains a new section which provides for ending the practice fee diversion. It would amend 35 U.S.C. § 42 pertaining to "Patent and Trademark Office funding". It would provide that "All fees paid to the Director and all appropriations for defraying the costs of the activities of the Patent and Trademark Office will be credited to the Patent and Trademark Office Account in the Treasury of the United States." It further provides that "Fees authorized in this title or any other Act to be charged or established by the Director shall be collected by the Director and shall be available until expended."

Currently, funding for the USPTO is set by bills reported by the House and Senate Appropriations Committees. The appropriation is less than the amount of fees collected, with the remainder being used to subsidize other government programs. Intellectual property owners, the groups that represent them, and technophiles in the Congress oppose the process of fee diversion.

Michael Kirk, Executive Director of the American Intellectual Property Law Association (AIPLA) told Tech Law Journal after the meeting that "our goal is to see an end to diversion". He added that the USPTO "badly needs funds". He stated that it can take up to four years to obtain a telecommunications or computer technology related patent.

Similarly, Michael Heltzer, of the International Trademark Association (INTA), told TLJ that "we are anxious to find an end to fee diversion". He added that "fee diversion has cost patent and trademark owners hundreds of millions of dollars ... $582.1 Million".

For many years, the members of the House Judiciary Committee have sought to end the practice of patent and trademark fee diversion, while members of the House Appropriations Committee have defended it. The appropriators have won every battle in the past.

House Science Committee Holds Hearing on MSI Tech Grant Bill

7/9. The House Science Committee's Subcommittee on Research held a hearing on HR 2183, the "Minority Serving Institution Digital and Wireless Technology Opportunity Act".

The bill would create a new office at the National Science Foundation (NSF) named the Office of Digital and Wireless Network Technology (ODWNT). The bill would also authorize the appropriation of $250,000,000 for each of the fiscal years 2004 through 2008 for grants to be administered by this new office.

The institutions eligible for grants would include "a historically Black college or university", "a Hispanic-serving institution", and "a tribally controlled college or university".

Grants could be used "to acquire the equipment, instrumentation, networking capability, hardware and software, digital network technology, wireless technology, and infrastructure". Grants could also be used "to develop and provide educational services, including faculty development, to prepare students or faculty ...". Grants could also be used to provide teacher training, and to "implement joint projects and consortia to provide education regarding technology".

HR 2183 is the companion bill to S 196, which was introduced by Sen. George Allen (R-VA) on January 17, 2003. The Senate passed S 196 on April 30, 2003 by a vote of 97-0.

There is also a related bill, HR 2272, sponsored by Rep. Edolphus Towns (D-NY). Both Sen. Allen and Rep. Towns spoke at the hearing.

Rep. Towns stated that "While I support the efforts of Senator Allen and my colleague, Congressman Forbes, I would like to briefly comment on the one difference between our two bills. It is on the issue of peer review. Peer review is the manner by which members of the MSI community would be able to advise the National Science Foundation on which schools should receive this grant money, as opposed to reviewers from large research universities who do not have any familiarity with the MSI community."

He added that "I know that some have argued that this program may be better suited for placement in the Department of Commerce rather than NSF. ... I do believe that MSIs would reap greater benefits from a program that was not limited to solely funding academic enhancements for ``science, research and development““ which would be the case if the program became part of the NSF."

Rep. Nick Smith (R-MI), the Chairman of the Subcommittee, presided. He wrote in his opening statement that "I believe that the Digital Divide is a challenge that, if the federal government is to be involved, should be addressed on the basis of a school's financial need to provide connectivity, networking, and other technologies to their students, not on the race and/or ethnicity of its student population. To be sure, many Minority serving institutions do not have the depth and breadth of financial resources that large research universities have. But we also know that not all Minority serving Institutions are poor, and that hundreds of other smaller and rural colleges also face the challenge of bridging the digital divide."

See also, stories titled "Sen. Allen Introduces Bill to Create Technology Grant Program for MSIs" in TLJ Daily E-Mail Alert No. 586, January 20, 2003; "Senate Committee Approves Technology Grant Program for Minority Serving Institutions" in TLJ Daily E-Mail Alert No. 623, March 14, 2003; "Senate Passes Technology Grant Bill" in TLJ Daily E-Mail Alert No. 655, May 5, 2003; and "Rep. Forbes Introduces Bill to Provide Grants for Digital and Wireless Technology for MSIs" in TLJ Daily E-Mail Alert No. 669, May 29, 2003.

More Capitol Hill News

7/9. The House passed HR 438, the Teacher Recruitment and Retention Act of 2003, a bill to increase the amount of student loans that may be forgiven for teachers in mathematics, science, and special education. The bill is sponsored by Rep. Joe Wilson (R-SC)

7/8. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations, and the Census held a hearing titled "Federal Electronic Records Management: What is the Plan? What is our Progress?" See, testimony [pages in PDF] of the General Accounting Office (GAO) titled "Electronic Records: Management and Preservation Pose Challenges". This focuses on the National Archives and Records Administration's (NARA) difficulties in managing, preserving, and providing access to the electronic records produced by federal agencies. This testimony states that "most electronic records -- including databases of major federal information systems -- remained unscheduled: that is, their value had not been assessed, and their disposition -- to destruction or archives -- had not been determined. In addition, records of historical value were not being identified and provided to NARA; as a result, they were at risk of loss. NARA has begun to address these problems by taking steps to improve federal records management programs; among other things, it has (1) updated guidance to reflect new types of electronic records, (2) devised a strategy for raising awareness among senior agency management of the importance of good federal records management, and (3) devised a comprehensive approach to improving agency records management that includes inspections and identification of risks and priorities. Through these and other actions, NARA is making progress, but its approach to improving records management does not include provisions for using inspections to evaluate the efficacy of its governmentwide guidance, and an implementation plan for the approach has yet to be established. Without these elements, the risk is increased that federal records management problems will persist."

7/9. The Joint Economic Committee held a hearing titled "Technology, Innovation, and the Costs of Healthcare". See, prepared testimony [PDF] of Mark McClellan (Commissioner of the U.S. Food and Drug Administration), prepared testimony [PDF] of Carolyn Yancy (Director of the Agency for Healthcare Research and Quality), and prepared testimony [PDF] of Neil Powe (Johns Hopkins School of Medicine).

People and Appointments

7/9. The Senate confirmed Victor Wolski to be a Judge of the U.S. Court of Federal Claims for a term of fifteen years by a vote of 56-43. See, Roll Call No. 265. It was a nearly straight party line vote.

7/9. Peter Fisher, Under Secretary for Domestic Finance at the Department of the Treasury, announced his resignation, effective October 10, 2003. See, resignation letter and Treasury release.

7/9. President Bush announced his intent to nominate Kenneth Leet to be Under Secretary for Domestic Finance at the Department of the Treasury. If confirmed by the Senate, he will replace Peter Fisher. Leet is currently Managing Director of the Investment Banking Division at the Goldman Sachs Group. See, White House release.

7/9. President Bush announced his intent to nominate Susan Schwab to be Deputy Secretary of the Treasury. She is currently Dean of the University of Maryland School of Public Affairs. Prior to that, she worked for Motorola. She was also an Assistant Secretary of Commerce and Director General of the U.S. & Foreign Commercial Service of the Department of Commerce during the first Bush administration. Before that, she worked for former Sen. John Danforth (R-MO) as legislative director, chief economist, and legislative assistant for international trade. See, White House release.

7/9. Charles Schott was named Deputy Assistant Secretary for Trade and Investment in the Office of International Affairs at the Department of the Treasury, effective July 28. He will handle policy development and analysis on financial services and investment trade issues. He previously worked at Paradigm Partners in New Canaan, Connecticut. Before that, he worked at the management consulting firm of McKinsey & Company. During the Reagan administration, he worked at the Federal Communications Commission (FCC) and at the National Telecommunications & Information Administration, as Deputy Assistant Secretary of Commerce for Communications and Information. See, Treasury release.

7/9. Courtney Clelan was named Deputy Assistant Secretary of Legislative Affairs at the Department of the Treasury, effective July 28. She will handle congressional relations pertaining to banking and finance issues. Previously, she worked for the Consumer Bankers Association and for T. Rowe Price. See, Treasury release.

Thursday, July 10

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

7:45 - 11:30 AM. The Business Software Alliance (BSA) and the Center for Strategic & International Studies (CSIS) will host an invitation only policy forum titled "Securing Information Infrastructure in the E-Gov Era". The speakers will include Robert Holleyman (BSA), Jim Lewis (CSIS), Dan Burton (Entrust), Scott Charney (Microsoft), Mark Forman (OMB), Tim Hoechst (Oracle), Drew Ladner (Department of the Treasury), John Landwehr (Adobe Systems), Rep. Zoe Lofgren (D-CA), Tim McNulty (Carnegie Mellon University), George Newstrom (Virginia Secretary of Technology), Rep. Adam Putnam (R-FL), Douglas Sabo (Network Associates), and Rep. Pete Sessions (R-TX). Press contact: Jeri Clausing at or 202 530-5127. Others may contact Dan Fix at or Joelle Laszlo at Location: Room HC-5, Capitol Building.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. First, representatives of the FCC's International Bureau will report on the World Radio Conference 2003, which took place in Geneva, Switzerland from June 9 through July 4. Second, the FCC will consider a Report and Order regarding the compatibility of digital wireless phones and hearing aids. This is WT Docket No. 01-309. Third, the FCC's Homeland Security Policy Council will report on its accomplishments and future activities. See, agenda [PDF]. The meeting will be webcast. Press contact: Audrey Spivack or David Fiske at 202 418-0500. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of the proposed free trade agreements with Chile and Singapore, the nomination of Christopher Wray and Jack Goldsmith (to be Assistant Attorneys General), and several judicial nominations, including William Pryor (11th Circuit), Allyson Duncan (4th Circuit), Robert Brack (U.S. District Court, New Mexico), Samuel Der-Yeghiayan (Northern District of Illinois), Louise Flanagan (Eastern District of North Carolina), Lonny Suko (Eastern District of Washington), and Earl Leroy Yeakel (Western District of Texas). Press contact: Margarita Tapia at 202 224-5225. See, notice. Location: Room SDG 50, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Superguide v. DirecTV, No. 02-1561. This is an appeal from the U.S. District Court (WDNC) in a patent infringement case involving Interactive Program Guides (IPG) software and systems used in connection satellite television services. Location: Courtroom 402, 717 Madison Place, NW.

10:30 AM. The House Ways and Means Committee will meet to mark up Proposals of HR __ [PDF], the "United States Singapore Free Trade Agreement Implementation Act" and HR __ [PDF], the "United States Chile Free Trade Agreement Implementation Act". See, notice. Location: Room 1100, Longworth Building.

TIME CHANGE. 1:00 PM. The House Ways and Means Committee's Subcommittee on Social Security will hold a hearing on use and misuse of social security numbers. The hearing will begin at 1:00 PM, or immediately following completion of the markup of the FTA legislation. Location: Room B-318, Rayburn Building.

2:00 PM. The Senate Finance Committee will meet to review and make recommendations on proposed legislation implementing the U.S. Singapore free trade agreement and the U.S. Chile free trade agreement. Location: Room 215, Dirksen Building.

Day one of a two day conference titled "Municipal Broadband". The price to attend is $895. For more information, call 206 621-1938. Location: Pier 5 Hotel, Inner Harbor, Baltimore, MD.

The Commerce Department's Bureau of Industry and Security (BIS) will host a one day seminar titled Essentials of Export Controls. The BIS charges for admission.

Friday, July 11

The House will meet at 9:00 AM for legislative business. See, Republican Whip Notice.

The Federal Communications Commission's (FCC) Consumer Advisory Committee (CAC) will hold a meeting. See, notice in the Federal Register, June 25, 2003, Vol. 68, No. 122, at Pages 37824 - 37825. Location: FCC, Room TW-C305, 445 12th Street, SW.

Day two of a two day conference titled "Municipal Broadband". Ed Thomas, Chief of the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) is schedule to speak at 8:30 AM. The price to attend is $895. For more information, call 206 621-1938. Location: Pier 5 Hotel, Inner Harbor, Baltimore, MD.

The Commerce Department's Bureau of Industry and Security (BIS) will host a one day seminar titled Export Management Systems (EMS). The BIS charges for admission. Location: Washington DC.

Monday, July 14

? 2:00 PM. The Senate Judiciary Committee will hold a hearing to examine temporary entry provisions of the proposed free trade agreements with Chile and Singapore. Location: Room 226, Dirksen Building.

Tuesday, July 15

10:00 AM. The Senate Judiciary Committee will hold a hearing "Bankruptcy and Competition Issues in relation to the WorldCom Case". Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.

10:00 AM. Federal Reserve Board Chairman Alan Greenspan will testify before the House Financial Services Committee. He will deliver his semiannual report on monetary policy. See, notice. Press contact: Peggy Peterson
or Scott Duncan at 202 226-0471. Location: Room 2128, Rayburn Building.

Deadline to submit to the Internal Revenue Service (IRS) outlines of topics to be discussed at the IRS's September 10, 2003, hearing on proposed regulations relating to the definition of toll telephone service for purposes of the communications excise tax. See, notice in the Federal Register, June 17, 2003, Vol. 68, No. 116, at Pages 35828 - 35829.

Wednesday, July 16

The Federal Communications Commission's (FCC) Public Safety National Coordination Committee's (PSNCC) subcommittees will hold meetings. The Interoperability Subcommittee will meet from 9:00 - 11:30 AM. The Technology Subcommittee will meet from 12:30 - 3:00 PM. The Implementation Subcommittee will meet from 3:00 - 5:30 PM. Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Practice Committee and the Computer & Telecommunications Law Section of the D.C. Bar Association will host a brown bag lunch (with admission charges) titled "Is There a Worldwide Consensus on Implementing New Wireless Services? - A Debriefing of the 2003 World Radiocommunications Conference". The scheduled speakers include John Giusti (FCC's International Bureau), Jennifer Manner (Legal Advisor to FCC Commissioner Abernathy), Cecily Holiday (State Department), Karl Nebbia (NTIA's Office of Spectrum Management), James Voorhies (NTIA International Spectrum Plans Program Manager), Audrey Allison (Boeing), Jennifer Warren (Lockheed Martin). The moderators will be Lisa Choi (FCC's International Bureau), and Troy Tanner (Swidler Berlin). Location: Wilmer Cutler & Pickering, 2400 N St., NW, Concourse Level. For more information contact laurabsherman

More News

7/9. The Federal Communications Commission (FCC) published a notice in the Federal Register containing its revised list of foreign telecommunications carriers that are presumed to possess market power in foreign telecommunications markets. See, Federal Register, July 9, 2003, Vol. 68, No. 131, at Pages 40947 - 40951.

7/8. The Federal Trade Commission (FTC) filed a complaint on July 7 in U.S. District Court (WDTex) against Electronic Financial Group, Inc. and its principals, Paul McClinton, Jerry Federico, and Randy Balusek, alleging violation of Federal Trade Commission Act and the FTC's Telemarketing Sales Rule in connection with their providing assistance to fraudulent telemarketers seeking to drain funds from consumers' checking accounts. On July 8 the District Court entered a temporary restraining order. See, FTC release.

7/9. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in In Re The Boulevard Entertainment, Inc., a trademark registration case. Boulevard provides entertainment services over the telephone of a vulgar and pormographic nature. It attempted to register a trademark in an alphanumeric telephone number that included a vulgar term, as well as a trademark in the vulgar term itself. The examining attorney at the U.S. Patent and Trademark Office (USPTO) refused to register the marks, pursuant to 15 U.S.C. § 1052(a), which precludes registration of marks that consist of or comprise "immoral, deceptive, or scandalous matter". The Trademark Trial and Appeal Board (TTAB) affirmed. See, TTAB summary. Boulevard appealed, on both § 1052(a) and First Amendment grounds. The Appeals Court also affirmed. On the freedom of speech issue, the Court wrote that "the refusal to register a mark does not proscribe any conduct or suppress any form of expression because it does not affect the applicant's right to use the mark in question".

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