Tech Law Journal Daily E-Mail Alert
March 1, 2004, 9:00 AM ET, Alert No. 846.
Home Page | Calendar | Subscribe | Back Issues | Reference
House Scheduled to Take Up USPTO Fee Bill

3/1. The House of Republican leadership has again scheduled HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003", for consideration by the full House. See, Republican Whip Notice. The House had scheduled this bill for consideration three weeks ago, on Wednesday, February 11, but withdrew it.

The bill, as reported by the House Judiciary Committee, would raise fees collected by the U.S. Patent and Trademark Office (USPTO), but end the practice of diversion of fees to subsidize other government programs.

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

On February 10, representatives of the Judiciary Committee, which has long opposed the diversion of USPTO fees, and representatives of the Appropriation Committee, which has long passed appropriations bills that divert USPTO fees, reached an agreement regarding compromise language pertaining to the diversion of fees.

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, prepared an amendment. The key language is as follows: "There is established in the Treasury a Patent and Trademark Fee Reserve Fund. If estimated fee collections by the Patent and Trademark Office for a fiscal year exceed the amount appropriated to the Office for that fiscal year, fees collected in excess of the appropriated amount shall be deposited in the Patent and Trademark Fee Reserve Fund. After the end of each fiscal year, the Director shall, if the Director determines that there are sufficient funds in the Reserve Fund, make payments from the Reserve Fund to persons who paid patent or trademark fees during that fiscal year. The Director shall by regulation determine which persons receive such payments and the amount of such payments, except that such payments in the aggregate shall equal the amount of funds deposited in the Reserve Fund during that fiscal year, less the cost of administering the provisions of this paragraph."

However, there are other controversial issues. The House Rule Committee is scheduled to decide on Tuesday, March 2 what amendments may be offered.

The bill, as reported by the Judiciary Committee would allow the USPTO to outsource patent searches. Three weeks ago Rep. Marcy Kaptur (D-OH) and Rep. John Conyers (D-MI) submitted a proposed amendment to the Rules Committee that would prevent the outsourcing of patent searches.

In addition, Rep. Sheila Lee (D-TX) submitted a proposed amendment three weeks ago that would permit outsourcing, but require that some of the outsourcing go to minority or women owned businesses in the U.S.

Rep. Don Manzullo (R-IL), the Chairman of the House Small Business Committee, offered an amendment three weeks ago that would keep fees paid by small businesses constant, with increases based upon increases in the consumer price index.

Rep. Howard Berman (D-CA), the ranking Democrat on the Subcommittee on Courts, the Internet and Intellectual Property, offered two amendments three weeks ago that would sunset certain of the fee increases contained in the bill after five years.

See also, related stories:
 • "House Delays Consideration of USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 835, February 12, 2004.
 • "House to Vote on Bill to End USPTO Fee Diversion" in TLJ Daily E-Mail Alert No. 832, February 9, 2004.
 • "House Intellectual Property Caucus Advocates Ending USPTO Fee Diversion" in TLJ Daily E-Mail Alert No. 762, October 21, 2003.
 • "House Judiciary Committee Approves USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 695, July 10, 2003.
 • "House CIIP Subcommittee Holds Hearing on USPTO Fees" in TLJ Daily E-Mail Alert No. 637, April 4, 2003.

The House Republican leadership has also scheduled HR 1417, the "Copyright Royalty and Distribution Reform Act of 2003", for consideration on Wednesday, March 3, or Thursday, March 4. This bill, which is sponsored by Rep. Lamar Smith (R-TX), would replace copyright arbitration royalty panels with a Copyright Royalty Judge

Antitrust Division Sues Oracle to Enjoin Its Proposed Acquisition of PeopleSoft

2/26. The U.S. and seven states filed a complaint in U.S. District Court (NDCal) against the Oracle Corporation  alleging that Oracle's proposed acquisition of PeopleSoft, Inc. would lessen competition substantially in interstate trade and commerce in violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. The plaintiffs seek an injunction of the proposed acquisition. Oracle promptly announced that it will litigate this claim.

Hewitt PateHewitt Pate (at right) is the the Assistant Attorney General in charge of the Department of Justice's Antitrust Division. He stated in a release that "We believe this transaction is anticompetitive -- pure and simple ... Under any traditional merger analysis this deal substantially lessens competition in an important market. Blocking this deal protects competition that benefits major businesses, as well as government agencies that depend on competition to get the best value for taxpayers' dollars."

Jim Finn of Oracle stated in a release on February 26 that "The Department of Justice decision follows an aggressive lobbying campaign by PeopleSoft management ... It is inconsistent with the overwhelming evidence of intense competition in the markets we serve, and we believe it is without basis in fact or in law. A combined Oracle/Peoplesoft will significantly benefit all customers and shareholders involved."

The complaint alleges that "Unless it is enjoined, Oracle's proposed acquisition of PeopleSoft will substantially increase already high concentration among vendors that sell high function Human Resource Management (HRM) software and high function Financial Management Services (FMS) software purchased by organizations for use in the United States and abroad. More specifically, the proposed transaction will eliminate aggressive head-to-head competition between Oracle and PeopleSoft".

It adds that "Such a reduction in competition is likely to result in higher prices, less innovation and decreased support for these high function integrated software applications."

The complaint asserts very narrow definitions of the relevant markets. It alleges that "High function HRM and high function FMS software are lines of commerce and distinct markets under Section 7 of the Clayton Act." It further alleges that there are only three companies that compete in these markets, Oracle, PeopleSoft, and SAP. The complaint thus alleges that this would be a three to two merger.

Moreover, the complaint elaborates that "Each enterprise customer that needs high function HRM software solutions and high function FMS software solutions to satisfy its functional requirements has a unique end use for these products. The purchase of the relevant products is conducted through a procurement process that demonstrates that the software can be configured to meet the unique end use of the individual customer. The price of the software is set based on the circumstances presented by each transaction, and vendors can price discriminate against individual customers. Other means to support human resources and financial management functions are not sufficiently substitutable for enterprise customers to discipline a small but significant increase in the price for high function HRM and FMS software."

The complaint also alleges that "Although Oracle asserts that the merger would produce substantial efficiencies, it cannot demonstrate merger-specific and cognizable efficiencies that would be sufficient to offset the merger's anticompetitive effects."

Oracle issued a second release on February 26 in which it stated that "its Board of Directors has met and decided to vigorously challenge the Justice Department's lawsuit to block Oracle's merger with PeopleSoft. The Department's claim that there are only three vendors that meet the needs of large enterprises does not fit with the reality of the highly competitive, dynamic and rapidly changing market. Oracle has always been an innovator in the industry and led the way to reducing total cost of ownership and believes that the combined company will be able to offer products and services at even lower prices."

Oracle's Jim Finn stated in this second release that "We believe that the government's case is without basis in fact or in law, and we look forward to proving this in court".

Oracle added that "Since the litigation will extend beyond the PeopleSoft Stockholders' meeting on March 25, 2004, Oracle is withdrawing the slate of independent directors and will not be soliciting proxies for use at the meeting. In addition, Oracle has extended its previously announced tender offer for all of the common stock of PeopleSoft, Inc. to midnight EDT on Friday, June 25, 2004." It added that "The tender offer was previously set to expire at midnight EST on Friday, March 12, 2004. As of the close of business on Thursday, February 26, 2004, a total of 5,294,574 shares had been tendered in and not withdrawn from the offer."

Craig Conway, P/CEO of PeopleSoft stated in a release that "Now that the antitrust day of reckoning has arrived and the Justice Department has announced its decision to sue to block the transaction, it is time for Oracle to abandon its efforts to acquire the Company. Both companies should now devote all of their energy to competing in the marketplace to provide better products and services for customers. That's the PeopleSoft way of creating greater value for our stockholders."

The Antitrust Division filed this case in the Northern District of California. Oracle is a Delaware corporation based in Redwood Shores, California. PeopleSoft, which is not a party to this action, is a Delaware corporation, based in Pleasanton, California. The Antitrust Division filed in the San Francisco Division, rather than the San Jose Division.

This case is United States of America, State of Texas, State of Hawaii, State of Maryland, Commonwealth of Massachusetts, State of Minnesota, State of New York, and State of North Dakota v. Oracle Corporation, U.S. Court of Appeals for the Northern District of California, D.C. No. C 04 0807 (JCS).

Greenspan Discusses Property Rights in Conceptual Products

2/27. Federal Reserve Board Chairman Alan Greenspan gave a speech titled "Intellectual Property Rights" in Stanford, California. He posed numerous questions, but answered few of them.

Alan GreenspanGreenspan (at right) has no doubt that property rights, and state protection of property rights, are essential to market economies, and economic growth. He also states that these notions apply to conceptual property as well as physical property. But, he did not elaborate on specific details of the best intellectual property rights regime.

"Market economies require a rule of law. A society without state protection of individual rights, especially the right to own property, would not build private long-term assets, a key ingredient of a growing modern economy", said Greenspan. "Economic growth was greatly facilitated by the emergence of civil government, which provided, among other things, consistent and predictable enforcement of property rights."

He contrasted the success of market economies to the states of the former Soviet Union, which suffered from "legal chaos, rampant criminality, and widespread corruption", which led to "massive economic failure".

He also reviewed the historical trends. "Over the past half-century, the increase in the value of raw materials has accounted for only a fraction of the overall growth of U.S. gross domestic product (GDP). The rest of that growth reflects the embodiment of ideas in products and services that consumers value. This shift of emphasis from physical materials to ideas as the core of value creation appears to have accelerated in recent decades."

He also discussed differences between physical and conceptual inputs. "More generally, in the realm of physical production, where scarce resources are critical inputs, each additional unit of output is usually more costly to produce than the previous one; that is, production, at least eventually, is characterized by increasing marginal cost. By contrast, in the realm of conceptual output, much of production is characterized by constant, and perhaps even zero, marginal cost."

"But regardless of its causes, conceptualization is irreversibly increasing the emphasis on the protection of intellectual, relative to physical, property rights", said Greenspan. "Only in recent decades, as the economic product of the United States has become so predominantly conceptual, have issues related to the protection of intellectual property rights come to be seen as significant sources of legal and business uncertainty. In part, this uncertainty derives from the fact that intellectual property is importantly different from physical property. Because they have a material existence, physical assets are more capable of being defended by police, the militia, or private mercenaries. By contrast, intellectual property can be stolen by an act as simple as broadcasting an idea without the permission of the originator", said Greenspan.

"Moreover, one individual's use of an idea does not make that idea unavailable to others for their own simultaneous use. Even more importantly, new ideas -- the building blocks of intellectual property -- almost invariably build on old ideas in ways that are difficult or impossible to trace."

Greenspan rhetorical asked numerous questions. For example, he asked, "are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation? Are such protections so vague that they produce uncertainties that raise risk premiums and the cost of capital? How appropriate is our current system -- developed for a world in which physical assets predominated -- for an economy in which value increasingly is embodied in ideas rather than tangible capital?"

He concluded only that "we must begin the important work of developing a framework capable of analyzing the growth of an economy increasingly dominated by conceptual products."

In this speech Greenspan reiterated some of the same points that he made in speech titled "Market Economies and Rule of Law" that he delivered on April 4, 2003. See, story titled "Greenspan Addresses Intellectual Property Laws", also published in TLJ Daily E-Mail Alert No. 638, April 7, 2003.

Greenspan was the keynote dinner speaker at a conference sponsored by the Stanford Institute for Economic Policy Research (SIEPR), a research institute at Stanford University. The conference did not focus on intellectual property issues.

Canadian Court Rules It Has Jurisdiction Over Washington Post Based on Web Publication

1/27. The Superior Court of Justice in the province of Ontario, in the nation of Canada, released an opinion in Bangoura v. Washington Post, in which it denied the Washington Post's motion to dismiss for lack of personal jurisdiction.

This opinion, like the opinion of the High Court of Australia in Dow Jones v. Gutnick, which the Canadian court quoted at length, holds, in effect, that a party claiming defamation by a web publisher, may obtain personal jurisdiction over the publisher in any jurisdiction in the world where there is plaintiff with internet service.

Facts. Bangoura recently became a resident of Ontario, Canada. The opinion states that he previously worked for the "United Nations in a variety of countries, namely, Austria from 1987 to 1993, Ivory Coast from 1993 to 1994, and Kenya from December 1994 to January 1997."

The claim is over seven years old. It relates to articles originally published in January 1997.

The Washington Post is a publication the Washington Post Company, a Delaware corporation that is based in Washington DC. The Washington Post published in its newspaper and website three articles about the Bangoura while he was a United Nations employee working in the nation of Kenya.

The Court opinion quotes from these articles. For example, the opinion states that the Washington Post wrote that "The United Nations has removed a controversial African official from his post at the U.N. Drug Control Program and will not renew his contract because of ``misconduct and mismanagement,´´ a U.N. spokesman said yesterday." The opinion quotes another article: "Colleagues have accused him of sexual harassment, financial improprieties and nepotism."

The three Washington Post reports who wrote the articles are William Branigin, James Rupert, and Steven Buckley. All three now reside in the U.S. Two resided in Africa at the time that they wrote the articles that are the subject of this action.

Branigan remains with the Washington Post, and recently reported from Iraq as a journalist embedded with the 3rd Infantry Division. See, articles by Branigin on war in Iraq. (Washington Post web site requires registration.) Rupert is now Newsday's Deputy Foreign Editor.

Procedure. Bangoura filed a complaint in the Superior Court of Justice in Ontario against the Washington Post, the three reporters, the United Nations, and one other individual, alleging publication of false and injurious communications. Bangoura seeks an order censoring publication of the articles in the web site. Bangoura also seeks an order compelling publication of a prominent retraction.

Bangoura also seeks a huge damages award. The Court summarized these demands as follows: "Damages against the Washington Post defendants in the amount of $500,000.00 for intentional interference with prospective economic advantage and inducing a breach of employment contract ... in the amount of $1,000,000.00 for intentional infliction of mental anguish ... in the amount of $1,000,000.00 for negligence." He also seeks damages against the Washington Post only "in the amount of $1,000,000.00 for refusing to post retractions, and for unreasonable delay in removing defamatory messages posted on its web page." Finally, he seeks "Punitive and exemplary damages in the amount of $2,000,000.00."

The Washington Post and its three reporters then filed motion to dismiss them on the grounds that it lacks jurisdiction.

The Superior Court of Justice is a trial court. The presiding judge is Justice Romain W. M. Pitt, of the Toronto region.

Court Holding. The Court denied the motion, and held that it does have jurisdiction.

The Court began with the statement that "The publication took place in Washington, but the plaintiff's reputation was affected in Ontario. The applicable law is that of the lex loci delicti in tort cases; but, because this case involves defamation, it is difficult to determine where the tort occurred. If based on publication, then the District of Columbia is the choice of law; if based on damages and where reputation was affected, then Ontario is the choice of law. It is safe to say that Ontario and the District of Columbia are both appropriate fora."

The Court then wrote that "Before a court can assume jurisdiction over a foreign defendant, it must be satisfied that a real and substantial connection exists." Citing an earlier Ontario precedent, it identified eight factors to be considered in determining whether a "real and substantial connection exists":

"(1) The connection between the forum and the plaintiff's claim.
(2) The connection between the forum and the defendant.
(3) Any unfairness to the defendant in assuming jurisdiction.
(4) Any unfairness to the plaintiff in not assuming jurisdiction.
(5) The involvement of other parties in the suit.
(6) The court's willingness to recognize and enforce a foreign judgment rendered on the same jurisdictional basis.
(7) Whether the case is interprovincial or international in nature.
(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere."

The Court proceeded to examine each of these in order, and in the end, found that it may exercise jurisdiction. However, it only loosely related the facts of the case to the eight factors.

For example, in addressing the second factor, the "connection between the forum and the defendant", that Court wrote that "Admittedly, the defendants have no connection to Ontario". But, it stated that "the Washington Post is a major newspaper", and it is "often spoken of in the same breath as the New York Times". The Court offered no explanation for why these statements are relevant to the connection between the forum and the Washington Post, and if so, why they relate to the connection between the forum and the individual reporters.

Similarly, in addressing the third factor, "unfairness to the defendant in assuming jurisdiction", the Court wrote without explanation that publishers and reporters should be "insured for damages for libel or defamation anywhere in the world".

The Court did not address the consequences that the jurisdictional decision has on the case, beyond the inconvenience of transporting almost all of the parties and witnesses to a distant forum. The applicable substantive law differs significantly between the U.S. and Canada. First, in a suit alleging defamation of a government official, the opinion of the U.S. Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) offers publishers more protection than does the law of defamation in Ontario.

Second, the complaint seeks damages for unreasonable delay in removing defamatory messages posted on the Washington Post's web site. 47 U.S.C. § 230(c)(1) provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider".

Gutnick Case. The Court quoted extensively, and with approval, from Dow Jones v. Gutnick. That was a defamation case in which the Court held that personal jurisdiction exists where the allegedly defamed party is located.

The Australian Court wrote in the Gutnick case that "defamation is to be located at the place where the damage to reputation occurs. ... In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed."

See, story titled "High Court Rules Australia Has Jurisdiction Over Dow Jones Based on Web Publication" in TLJ Daily E-Mail Alert No. 564, December 10, 2002.

U.S. Cases. One U.S. case has reached a substantial different result. On December 13, 2002, the U.S. Court of Appeals (4thCir) issued its opinion [12 pages in PDF] in Young v. New Haven Advocate, holding that a court in Virginia does not have jurisdiction over two small newspapers, and their editors and reporters, located in Connecticut, who wrote allegedly defamatory stories about a Virginia prison warden and published them on the internet. The Court held that the web publication did not establish minimum contacts because the newspapers are not directed at a Virginia audience.

The U.S.4th Circuit wrote that "The facts in this case establish that the newspapers' websites, as well as the articles in question, were aimed at a Connecticut audience. The newspapers did not post materials on the Internet with the manifest intent of targeting Virginia readers. ... In sum, the newspapers do not have sufficient Internet contacts with Virginia to permit the district court to exercise specific jurisdiction over them."

In the Ontario case, the Court wrote "At the time of the publication of the articles, there was no wholesale distribution of the Post in Ontario or anywhere else in Canada. The only recipients of the Post in Ontario at the time of the publication were seven paid subscribers."

See also, TLJ story titled "4th Circuit Rules in Internet Jurisdiction Case", December 13, 2002. See also, stories titled "Internet Shoes: Two Appeals Courts Address Internet Based Personal Jurisdiction", "Fourth Circuit Holds No Personal Jurisdiction Over Out of State Web Host", and "DC Circuit Suggests Personal Jurisdiction Over Out of State Online Brokerage" in TLJ Daily E-Mail Alert No. 452, June 17, 2002.

However, in another U.S. case, the Court found personal jurisdiction in a defamation case based upon internet publication. The U.S. Court of Appeals (9thCir) issued its opinion in Northwest Healthcare Alliance v. in 2002 holding that the U.S. District Court (WDWash) has personal jurisdiction over an out of state defendant in defamation case, based solely upon publication of its allegedly defamatory ratings of health care providers in a web site.

The Supreme Court denied certiorari. See, story titled "Supreme Court Denies Certiorari in Internet Jurisdiction Case" also published in TLJ Daily E-Mail Alert No. 652, April 30, 2003.

The Canadian case is Cheickh Bangoura v. The Washington Post, William Branigin, James Rupert, Steven Buckley, the United Nations and Fred Eckhard, Case No. 03-CV-247461CM1.

Zoellick Condemns PR China's Theft of Intellectual Property

2/25. U.S. Trade Representative (USTR) Robert Zoellick gave a speech [9 pages in PDF] titled "China and America: Power and Responsibility" at the Asia Society Annual Dinner in Washington DC. He criticized the People's Republic of China for its lax enforcement of intellectual property rights (IPR), its discriminatory taxation on semiconductors, and its mandatory encryption standard for wireless networking products.

Robert ZoellickZoellick (at right) stated that "If China does not reverse its lax enforcement of intellectual property rights (IPR), it will subvert the development of knowledge industries and innovation around the world. Piracy of ideas in China is rampant. If we can make it, they can fake it."

Zoellick stated that "For China to exercise the responsibility that comes with its new status as a trading power, China must fully implement the commitments it made on joining the WTO. China's WTO accession was an historical achievement, and the efforts required of China to implement its accession commitments are substantial. Yet the complexity of the task does not excuse an incomplete performance."

"With all of the challenges facing China, China may be losing momentum on WTO implementation. Some officials, bending to pressures from entrenched interests, are continually working to find ways around implementing the country’s obligations."

Zoellick addressed theft of IPR in China in more detail. He stated that "The items being counterfeited range far beyond DVDs and other creative media. They include automobile brakes, even entire passenger cars, electrical switches, medicines, processed foods and other items that present health and safety risks in China and abroad because of poor product quality regulation."

He continued that the "The scope and magnitude of the problem is increasing -- with some American firms experiencing wholesale theft of their brand names -- from sales operations to product delivery. Premier Wen Jiabao and others have spoken of the importance of IPR to an advancing economy and of the need to enforce IPR more actively. Vice Premier Wu Yi -- formerly China's Trade Minister and the accomplished woman who the leaders put in charge of the SARS crisis -- now chairs a working group on IPR enforcement. Yet, as the Chinese say, ``talk doesn't cook rice.´´ We need to see results."

He also stated that "China's discriminatory tax policies -- most blatantly on semiconductors -- are a troubling signal that China may seek to pursue an industrial policy of limiting competition from imports, while gaining the advantages of open competition in others' markets."

Finally, he said that "China is turning to special standards designed to limit foreign participation in key sectors. For example, China's new mandatory encryption standard for wireless networking products would make China the only WTO member to introduce such a mandate for consumer products -- a restriction compounded by granting domestic companies exclusive control over the technology."

Zoellick said that he had one encouraging encounter on a recent trip to China. He said that when he met with a group of graduate students from Liaoning University a colleague asked each to name the American, past or present, they would most wish to meet. Said Zoellick, "I smiled at the number who said ``Bill Gates´´; entrepreneurial capitalists have not always been held in high esteem in China. I also made a mental note to think how we might reference this interest to persuade their elders in Beijing to strengthen the protection of intellectual property."

Washington Tech Calendar
New items are highlighted in red.
Monday, March 1

The House will meet at 12:00 NOON in pro forma session only. See, Republican Whip Notice.

The Senate will meet a 12:00 NOON and resume consideration of S 1805, the gun liability bill.

10:30 AM. The Senate Appropriations Committee's Defense Subcommittee will hold a hearing on the proposed budget for the Department of Defense. Location: Room 192, Dirksen Building.

11:00 AM. The Heritage Foundation will host a panel discussion titled "Entering America: Challenges Facing the US-VISIT Program". The speakers will be James Williams (Director US-VISIT, DHS) and James Carafano (Heritage). See, notice. Location: Heritage Foundation: 214 Massachusetts Ave NE.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding Level 3 Communications' petition for forbearance requesting the FCC to forbear from application of 47 U.S.C. § 251(g), the exception clause of § 51.701(b)(1) of the FCC's rules, and § 69.5(b) of the FCC's rules to the extent those provisions could be interpreted to permit local exchange carrier (LECs) to impose interstate or intrastate access charges on internet protocol (IP) traffic that originates or terminates on the public switched telephone network (PSTN), or on PSTN-PSTN traffic that is incidental thereto. This is WC Docket No. 03-266. See, FCC notice [3 pages in PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) to update the record concerning petitions for reconsideration of rules that the FCC adopted in the 1997 access charge reform docket. See, notice in the Federal Register, January 16, 2004, Vol. 69, No. 11, at Pages 2560 - 2561.

Tuesday, March 2

The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. It will consider several non technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

9:00 AM - 4:00 PM. The George Mason University law school will host a symposium titled "Antitrust and Consumer Protection". At 9:15 AM Judge Douglas Ginsburg of the U.S. Court of Appeals (DCCir) will speak. At 10:15 AM there will be a panel discussion titled "20 Years Later: Is It Time for New Vertical Merger Guidelines?". See, notice. Location: Marriott Wardman Park Hotel.

9:30 AM. The Senate Armed Services Committee will hold a hearing on President Bush's defense authorization request for FY 2005 and the future years defense program. See, notice. Location: Room 216, Hart Building.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget  for the Department of Commerce (DOC). Location: Room S-146, Capitol Building.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the proposed budget for science and technology programs, information analysis, and infrastructure protection. Location: Room 124, Dirksen Building.

10:00 - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. See, notice in the Federal Register, October 21, 2003, Vol. 68, No. 203, at Page 60104. For more information, contact Barbara Kreisman at 202 418-1600 or Susan Mort 202 418-1043. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

4:00 PM. Gretchen Ann Bender (University of Dayton School of Law) will present a paper titled "The Return to Core Values: Intellectual Property as a Commercialization Tool" in which she argues that intellectual property is simply a tool by which the U.S. distributes, spreads, and commercializes human creativity. For more information, contact Robert Brauneis at 202 994-6138 or Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

5:30 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003".

Wednesday, March 3

The House will meet at at 10:00 AM for legislative business. It may consider HR 1417, the "Copyright Royalty and Distribution Reform Act of 2003", under suspension of the rules. It may also consider HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003", subject to a rule. See, Republican Whip Notice.

9:30 AM. The Senate Armed Services Committee's Subcommittee on Emerging Threats and Capabilities will hold a hearing on the role of defense science and technology in the global war on terrorism and in preparing for emerging threats in review of the defense authorization request for fiscal year 2005. Location: Room 325, Russell Building.

10:00 AM. The House Financial Services Committee will hold a hearing on Hearing on HR 3574, the "Stock Option Accounting Reform Act". Location: Room 2128, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's Defense Subcommittee will hold a hearing on President Bush's proposed budget for the Department of Defense. Location: Room 192, Dirksen Building.

4:30 PM. Treasury Secretary John Snow will speak at the George Washington School of Law. Location: Jacob Burns Moot Court Room, 2000 H Street, NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding modifying it frequency coordination rules to promote sharing between non-geostationary satellite orbit (NGSO) and geostationary satellite orbit (GSO) fixed-satellite service (FSS) operations and various terrestrial services operating in several frequency bands. This NPRM considers a joint proposal submitted by SkyBridge and the Fixed Wireless Communications Coalition (Growth Zone Proposal). This is ET Docket No. 03-254.

Thursday, March 4

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

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a luncheon. The speakers will include Charlie Ergen, Ch/CEO of EchoStar Communications. RSVP to Brooke Emmerick at 202 289-8928 or The PFF notice also states that "Members of the media should contact David Fish at 202-289-8928 or" Location: Rotunda Room, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

10:00 AM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the proposed budget for the Department of Homeland Security (DHS). Secretary Tom Ridge is scheduled to testify. Location: Room 2359, Rayburn Building.

1:00 PM. The House Appropriations Committee's Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies will hold a hearing on the proposed budget for the Department of Justice (DOJ). Location: Room H-309, Capitol Building.

Friday, March 5

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Practice Committee will host a luncheon. The topic will be "Meet CTIA's New Federal Regulatory and Congressional Affairs Senior Team". The price to attend is $15. RSVP by 5:00 PM on March 3 to Wendy Parish at For more information contact Laura Phillips at 202 842-8891. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

Sunday, March 7

Day one of a four day meeting of the National Association of Regulatory Utility Commissioners (NARUC). For more information, contact Michelle Malloy at 202 898-2214 or Wendy Harris at 202 898-2209. See, notice. Location: Renaissance Washington Hotel.

GAO Reports on Competitive Sourcing by Federal Agencies

2/27. The General Accounting Office (GAO) released a report titled "Competitive Sourcing: Greater Emphasis Needed on Increasing Efficiency and Improving Performance". The report was prepared for several members of the House and Senate Government Reform Committees, and for Sen. Robert Byrd (D-WVA).

The report first explains the nature of competitive sourcing. "Agencies increasingly rely on a range of technical and support services to meet mission objectives. It is important for agencies to decide how best to acquire and deliver such services, including whether to obtain services in-house or through private sources. One way to inform this decision is to use competitive sourcing, a strategy under which agencies open the government’s commercial activities to competition among public and private sector sources."

The GAO report notes too that "In 2001, the administration identified competitive sourcing as one of five governmentwide initiatives in the President’s Management Agenda." [64 pages in PDF]

The report finds that "Each of the agencies we reviewed has laid the foundation for its competitive sourcing program. The Department of Defense (DOD) has had an extensive competitive sourcing program in place since the mid-1990s, and all of the civilian agencies we reviewed have created a basic infrastructure for their competitive sourcing programs since the President announced competitive sourcing as a governmentwide initiative in August 2001. In creating these infrastructures, agencies have established offices, appointed officials, hired staff and consulting contractors, issued guidance, and conducted training."

It also finds that "Although agencies have made progress, they cited several challenges in implementing their competitive sourcing programs. Key among these challenges is developing workforce inventories that identify commercial and inherently governmental full-time equivalent (FTE) positions. Agencies reported difficulty in classifying positions as inherently governmental or commercial ..." It adds that "Agencies also have been challenged to ensure they have adequate personnel with the skills needed to run a competitive sourcing program."

US and EU Release Statement on GPS/Galileo Negotiations

2/26. The US and EU released a joint statement on negotiations regarding the Global Positioning System (GPS) and Galileo, the EU's satellite radio navigation system. See, US release and EU release.

They wrote that "The United States and the European Commission, joined by the European Union Member States, held a successful round of negotiations in Brussels on 24-25 February 2004. The delegations built upon progress made in The Hague and in Washington and were able to reach agreement on most of the overall principles of GPS/Galileo cooperation, including,

 • Adoption of a common baseline signal structure for their respective open services
 • Confirmation of a suitable baseline signal structure for the Galileo Public Regulated Service (PRS)
 • A process allowing optimization, either jointly or individually, of the baseline signal structures in order to further improve performances
 • Confirmation of interoperable time and geodesy standards to facilitate the joint use of GPS and Galileo
 • Non-discrimination in trade in satellite navigation goods and services
 • Commitment to preserve national security capabilities
 • Agreement not to restrict use of or access to respective open services by end-users
 • Agreement to jointly finalize associated documents after which the agreement will be presented for signature"

The US and EU added that "The delegations will continue to work diligently to resolve the few remaining outstanding issues which concern primarily some legal and procedural aspects."

People and Appointments

2/26. Bert DuMars was named Director, Electronic Tax Administration, at the Internal Revenue Service (IRS). He previously worked for Trend Micro, Inc. He has also worked for Intel and Dell. He replaces Terry Lutes, who was named Associate Chief Information Officer for IRS Information Technology Services. See, IRS release.

2/25. Sun Microsystems announced that Patricia Sueltz, EVP of Sun Services, is leaving Sun, effective immediately. See, Sun release.

More News

Jon Dudas2/29. Jon Dudas (at right), the acting head of the U.S. Patent and Trademark Office (USPTO), will be in the People's Republic of China from February 29 through March 5 for consultations with officials at China's patent and trademark and other intellectual property agencies. The USPTO stated in a release that one reason for the trip "is to help further the Administration's goals of improving the environment for U.S. companies doing business in China, and addressing widespread counterfeiting and piracy. This year, the Commerce Department, in conjunction with the Office of the U.S. Trade Representative, will conduct a high level Joint Commission on Commerce and Trade (JCCT) on trade issues with China". Dudas' trip "helps pave the way for the April 2004 meeting of the JCCT in Washington, as well as other IPR initiatives in China of the Department of Commerce and other U.S. government agencies."

2/28. The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) amended and released its Federal Information Processing Standard (FIPS) 180-2 [83 pages in PDF], titled "Secure Hash Standard". The additional language begins at page 72 of the paper version [PDF page 76].

2/27. The Internal Revenue Service (IRS) announced in a release that "Through February 20, overall e-filing reached 29 million returns, an increase of more than 2 million, or 8 percent, over the same period last year. More than 6.6 million taxpayers have e-filed from their personal computers, a 23 percent increase."

2/26. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held another hearing on HR 3717, the "Broadcast Decency Enforcement Act of 2004". The witnesses at this hearing were broadcasters. See, prepared testimony of Alex Wallau (President, ABC Television Network), Gail Berman (President of Entertainment, Fox Broadcasting Company), Alan Wurtzel (National Broadcasting Company), Bud Paxson (Ch/CEO of Paxson Communications Corporation), John Hogan (P/CEO of Clear Channel Radio), and Harry Pappas (Ch/CEO of Pappas Telecasting Companies).

2/26. VeriSign filed a complaint in the U.S. District Court (CDCal) against the Internet Corporation for Assigned Names and Numbers (ICANN). See, VeriSign release alleging violation of antitrust laws. VeriSign has a contract with the ICANN to operate the .com and .net top level domains. VeriSign asserts that the ICANN exceeding its federal charter to be a technical coordination body, by attempting to regulate the domain name system. See, stories titled "ICANN Asks VeriSign to Suspend Wildcard Service" in TLJ Daily E-Mail Alert No. 743, September 22, 2003; "VeriSign Refuses to Suspend Deployment of Wildcard Service" in TLJ Daily E-Mail Alert No. 744, September 23, 2004; and "ICANN Demands That VeriSign Cease Wildcard Feature" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

Sen. Ron Wyden2/25. The Senate Budget Committee held a hearing on President Bush's budget proposals for the Department of Homeland Security (DHS) for fiscal year 2005. See, prepared testimony [8 pages in PDF] of Tom Ridge, the Secretary of Homeland Security. Sen. Ron Wyden (D-OR), a member of the Committee raised the subject of data mining activities at the DHS, a requested that the DHS provide information on its activities. Sen Wyden (at right) stated that "A whole host of information is being examined by government agencies every single day... Congress is in the dark with respect to what's going on in data mining, there are no privacy rules, and [taxpayers] are spending money on this, and it seems to me that the public has a right to know exactly what's going on." See, Wyden release.

2/27. The Federal Communications Commission (FCC) and the Department of Commerce's National Telecommunications and Information Administration (NTIA) both announced that FCC Chairman Michael Powell and acting Administrator of the NTIA Michael Gallagher met to discuss "spectrum policy issues". See, FCC release and substantially identical NTIA release. The two also posed for a picture with a revised, but out of date, US Frequency Allocation Chart [PDF].

About Tech Law Journal
Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2004 David Carney, dba Tech Law Journal. All rights reserved.