|Jury Returns Verdict of Infringement Against
Microsoft in Eolas Browser Patent Case
8/11. A trial jury of the U.S.
District Court (NDIll) returned its verdict that Microsoft infringed
U.S. Patent No. 5,838,906 titled "Distributed hypermedia method for
automatically invoking external application providing interaction and display of
embedded objects within a hypermedia document". The jury also awarded damages of
Microsoft stated in a
release that "While today's outcome is disappointing, we do plan to appeal this decision
and we are confident the facts and the law will support our position. It's
important to note that the court has already rejected claims that there was any
willful infringement. We believe the evidence will ultimately show that there
was no infringement of any kind, and that the accused feature in our browser
technology was developed by our own engineers based on pre-existing Microsoft
Microsoft added that "As an intellectual property company, Microsoft invests
heavily in research
and development, and is committed to respecting the intellectual property rights
of others. Microsoft stands by its products and will continue to develop
innovative technologies that benefit consumers. Regardless of the ultimate
outcome of this case, Microsoft will work hard to ensure that there is very
little if any impact on our customers."
The patent application was filed in October 1994. The patent was issued on
November 17, 1998. The inventors are Michael Doyle, the founder of
Eolas Technologies, David Martin and Cheong Ang.
The abstract of the patent states the following: "A system allowing a user
of a browser program on a computer connected to an
open distributed hypermedia system to access and execute an embedded program
object. The program object is embedded into a hypermedia document much like data
objects. The user may select the program object from the screen. Once selected
the program object executes on the user's (client) computer or may execute on a
remote server or additional remote computers in a distributed processing
arrangement. After launching the program object, the user is able to interact
with the object as the invention provides for ongoing interprocess communication
between the application object (program) and the browser program. One
application of the embedded program object allows a user to view large and
complex multi-dimensional objects from within the browser's window. The user can
manipulate a control panel to change the viewpoint used to view the image. The
invention allows a program to execute on a remote server or other computers to
calculate the viewing transformations and send frame data to the client computer
thus providing the user of the client computer with interactive features and
allowing the user to have access to greater computing power than may be
available at the user's client computer." (Parentheses in original.)
|Powell Addresses E911 and DTV Transition
8/11. Federal Communications Commission (FCC) Chairman
Michael Powell gave a
speech [PDF] in Indianapolis, Indiana to the
Association of Public Safety
Communications Officials International. He focused on E911 implementation, but
also addressed 800 MHz interference issues, and the DTV transition.
right) began by stating that "Spectrum policy and homeland security are at the forefront of my
strategic plan for the Commission. Central to that plan is the implementation of
Enhanced 911 for wireless communications devices."
He noted that "the FCC cannot MAKE E911 happen -- we need carriers, public
safety, ILECs, equipment vendors, and state and local governments ..."
However, he added that "our progress requires the use of an
occasional stick. The Commission has not hesitated to use its enforcement power when
wireless carriers are not justified in delayed deployment. Within the past fifteen months,
we have taken a number of actions where carriers have failed to comply, including entering
into consent decrees with multiple national carriers who did not adhere to their
deployment schedules. In addition to substantial fines, each carrier is now subject to binding
deployment schedules with automatic penalties if they fail to comply again."
Powell also addressed interference in the 800 MHz band. He stated that "public
safety needs reliable access to its existing spectrum
resources, particularly at 800 MHz. The interference issues at 800 MHz are
very serious and complex. In fact, this may be one of the most challenging spectrum policy
proceedings that will come before this Commission."
Finally, he touched on the 700 MHz band, and DTV transition. He stated that
the FCC is "committed to speeding public safety deployment in the 700 MHz band.
... However, as you know, the band is currently encumbered by
broadcasters. The delay in the initial auction of the 700 MHz commercial bands has required
modification of the FCC's original voluntary band clearing plan. Congress is exploring new
options for moving this process forward. In addition, we are tackling the challenge of
the DTV transition to hasten the clearing of the band. Whatever the ultimate mechanism, rest
assured that we understand the need to make these frequencies available as soon as possible."
letter [PDF] from Powell to Melvin Carraway, Superintendent of the Indian
State Police Department, and FCC
|NetCoalition Propounds Interrogatories by
Letter to RIAA Re DMCA Subpoenas
8/11. NetCoalition wrote a
pages in PDF] to Cary Sherman, President of the
Recording Industry Association of America (RIAA), which propounds
numerous written interrogatories about the RIAA's use of subpoenas issued by the
U.S. District Court pursuant to
Section 512 of the
DMCA, that direct ISPs to provide information about subscribers alleged to be
engaging in P2P copyright infringement over the ISPs' networks. There is no
pending lawsuit between the NetCoalition and the RIAA.
The NetCoalition is a Washington DC based interest group. Its website lists as
members Yahoo, Inktomi, Lycos, and DoubleClick. Its letter to the RIAA states
that its membership includes "hundreds of small
Internet service providers".
The letter includes 18 numbered paragraphs with
questions to be answered by the RIAA. Many paragraphs include multiple
questions. Furthermore, the NetCoalition wants the RIAA to meet with the
NetCoalition "and other interested parties to discuss the RIAA's legal
initiative and, hopefully, provide answers to the questions".
Some of the questions seek facts regarding the
RIAA's subpoenas. They resemble written interrogatories submitted pursuant to
Rule 33, Federal
Rules of Civil Procedure. However, the letter exceeds the limit of 25
interrogatories. It also asks some questions regarding legal conclusions and
litigation strategies and plans.
For example, the letter asks "What methods does the RIAA employ
to search for potential copyright infringers on P2P networks?", "what criteria
does the RIAA employ to determine whether to file a copyright infringement
suit?", "Are the RIAA's investigative efforts also targeting potential file
sharing that may be occurring through email, instant messaging, or other
comparable technology?", and "Once the RIAA believes it has identified a
possible infringing file through technological means, what ``due diligence´´ does
RIAA perform to ensure the accuracy of this identification?"
The NetCoalition has not filed a lawsuit against the RIAA. However, on July
30, 2003, Pacific Bell Internet Services (PBIS), an SBC affiliate, filed a
complaint in U.S. District Court (NDCal)
against the RIAA seeking declaratory and injunctive relief regarding the
validity of subpoenas issued by the U.S.
District Court (DC), pursuant to Section 512 of the DMCA. In fact, several
questions in the NetCoalition's letter reference allegations made by the RIAA in
PBIS v. RIAA. Answers to the NetCoalition's questions would aid PBIS in its
story titled "Pacific Bell Internet Services Sues RIAA Over Infringer
Subpoenas", July 30, 2003 (also published in TLJ Daily E-Mail Alert No. 709,
August 1, 2003.
The letter also asks questions regarding legal conclusions and
interpretations. For example, it asks "Can you explain the RIAA's interpretation
of ``good faith belief´´", as referenced in the DMCA. It also asks, "Does the
RIAA believe that it, too, has ``roving subpoena´´ authority, and can seek a
subpoena in one federal court (e.g., the federal district court for the District
of Columbia), which can be served no matter where a service provider is actually
Similarly, the letter asks, "Does the RIAA believe that ISPs are legally
required to reconfigure the operation of their networks, particularly WiFi
networks and other networks using temporary or ``dynamic´´ Internet Protocol
addresses, to facilitate the identification of alleged infringers using such
The letter also asks questions regarding the RIAA's litigation strategy and plans.
For example, it asks, "what criteria does the RIAA employ to determine whether
to file a copyright infringement suit?" It also asks, "Does the RIAA intend to
reimburse Internet companies, especially small ones, for the resources they
expend answering RIAA's subpoenas?" Finally, it asks, "What compensatory damages
will the RIAA provide to an individual whose personal information was released
by the RIAA as a result of the subpoena process but was not subject to a lawsuit
or were wrongfully targeted?"
The letter also states that "There are
understandable fears among many in the Internet community that the real purpose
of this legal campaign is to achieve in court what the association has not yet
been able to accomplish in Congress – to make Internet companies legally
responsible for the conduct of individuals who use their systems, forcing these
companies to become not only the police of the Internet but also permanent and
constant watchdogs of the substance of all email traffic, instant messaging, and
|People and Appointments
8/11. Deputy Attorney General
Larry Thompson will leave the Department of Justice
(DOJ) at the end of August.
He will take a position at the Brookings Institution. See,
8/5. Kevin Ryan, the U.S. Attorney for the Northern District of
California (NDCal), made several changes in the U.S. Attorneys Office (USAO) for
the NDCal. See, USAO
Ross Nadel, who has a background in prosecuting computer and intellectual
property crimes, was named Chief of the Criminal Division. He was previously
Chief of the San Jose Branch Office, and acting Chief of the Computer Hacking
and Intellectual Property Unit (CHIP).
Nadel replaces Charles "Ben" Burch, who will return to the Oakland office, where he will be
the interim Chief, while the Chief, Jack Laettner, continues to work full
time on a homicide prosecution.
Christopher Sonderby was named Chief of the CHIP Unit. He will be based in
the San Jose office. He was previously head of the Computer Crimes section and
the Computer and Telecommunications Coordinator in the USAO for the Eastern
District of California. Before that, he worked for the law firm of
Sonnenschein Nath & Rosenthal in San
Laurel Beeler was named Deputy Chief of the Criminal Division.
Joann Swanson was named Chief of the Civil Division.
|Tuesday, August 12
The House is in recess until September 3. Senate is in recess until
September 2. The Supreme Court is in recess.
10:00 AM. The U.S. Public
Interest Research Group will hold a press conference to
release a report on cable broadband. For more information,
contact Jennifer Mueller at 202 546-9797 Location: National
Press Club, First Amendment Lounge.
Deadline to submit comments, or requests to speak at the September 2, 2003
public hearing, on the Treasury Department's
and the Internal Revenue Service's (IRS) notice of
proposed rulemaking (NPRM)
regarding regulations that "affect certain taxpayers who participate in the
transfer of stock pursuant to the exercise of incentive stock options and the
exercise of options granted pursuant to an employee stock purchase plan
(statutory options)." See,
notice in the Federal Register, June 9, 2003, Vol. 68, No. 110, at Pages 34344 - 34370.
|Wednesday, August 13
10:00 AM - 12:00 PM. The Federal
Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB)
will hold a public forum to present the new application search interfaces that
will be available for the public to access Multipoint Distribution
Service/Instructional Television Fixed Service (MDS/ITFS) Application data.
notice [PDF]. Location: Room 4-B-516, 4th Floor, FCC, 445 12th Street, SW.
Day one of a three day conference hosted by the
American Intellectual Property Law Association
(AIPLA) titled "2003 Practical Patent Prosecution Training for New Lawyers".
notice [PDF]. Location: Arlington, VA.
|Thursday, August 14
Deadline to submit comments to the National
Institute of Standards and Technology (NIST) regarding its
document [12 pages in PDF] titled "Draft Federal Information Processing
Standard (FIPS) 199 on Standards for Security Categorization of Federal
Information and Information Systems". The NIST states that this document
"defines requirements to be used by Federal agencies to categorize information
and information systems, and to provide appropriate levels of information
security according to a range of risk levels." For more information,
contact Ron Ross at 301 975-5390 or
notice in the Federal Register, May 16, 2003, Vol. 68, No. 95, at
Pages 26573 - 26574.
|Monday, August 18
10:15 AM - 12:00 NOON. The American Enterprise
Institute (AEI) will host a panel discussion titled "Trade
in Services: Is More Liberalization Possible in
the Doha Round?". The speakers will be Stephen Canner (U.S. Council for
International Business), James Mendenhall (Office of the U.S. Trade Representative), and
Robert Vastine (U.S. Coalition of Services Industries). See,
Location: AEI, 12th Floor, 1150 17th Street, NW.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) in response to its Notice of Inquiry (NOI)
pertaining to the possibility of incorporating receiver performance specifications
into the FCC's spectrum policy. This NOI follows the recommendations of the FCC's
Spectrum Policy Task Force (SPTF)
report [PDF] of November 15, 2002. See,
"FCC Announces NOI Re Receiver Performance Standards" in TLJ Daily E-Mail Alert
No. 624, March 17, 2003. See also,
notice in the Federal Register, May 5, 2003, Vol. 68, No. 86, at Pages 23677 -
23686. This is ET Docket No. 03-65, FCC 03-54. For more information, contact
Hugh Van Tuyl at the FCC's Office of Engineering and Technology (OET) at 202 418-7506 or
8/10. Federal Reserve Board (FRB)
Governor Susan Bies
speech in San Francisco, California about the role that legal counsel
and other professionals should play in ensuring effective corporate governance
in the aftermath of the WorldCom and other scandals.
8/12. The Department of Homeland Security's
(DHS) Information Analysis and Infrastructure Protection Directorate's (IAIP)
National Cyber Security Division (NCSD) issued an
updated advisory in which it stated that "MALICIOUS CODE DUBBED
OR "BLASTER" BEGAN CIRCULATING ON THE INTERNET ON AUGUST 11TH. THIS WORM TAKES
ADVANTAGE OF THE VULNERABILITY DISCUSSED IN THIS ADVISORY, AND CONTAINS CODE
THAT WILL TARGET MICROSOFT'S UPDATE SERVERS ON AUGUST 16TH. THIS ADDITIONAL
ATTACK COULD CAUSE SIGNIFICANT INTERNET-WIDE DISRUPTIONS. IT IS POSSIBLE THAT
OTHER WORMS BASED ON THIS VULNERABILITY WILL BE RELEASED OVER THE NEXT FEW DAYS
AS "COPY CAT" ATTACKS.)" (Capitals and parentheses in original.) See also,
report on the W32.Blaster.Worm, McAfee's
report on the worm, and Microsoft's Security Bulletin
MS03-026 regarding the vulnerability.
|About Tech Law Journal
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