|House Scheduled to Take Up USPTO
3/1. The House of Republican leadership has again scheduled
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.
Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, prepared an
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
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
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
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
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.
Pate (at right) is the the Assistant Attorney General in charge of the Department
of Justice's Antitrust Division. He stated in a
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
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
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
Oracle issued a second
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
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
2/27. Federal Reserve Board
Chairman Alan Greenspan gave
speech titled "Intellectual Property Rights" in Stanford,
California. He posed numerous questions, but answered few of them.
(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
"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
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,
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
motion to dismiss for lack of personal jurisdiction.
This opinion, like 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,
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
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
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
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
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
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
[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."
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
opinion in Northwest Healthcare Alliance v. HealthGrades.com 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,
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
2/25. U.S. Trade Representative (USTR)
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.
Zoellick (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
"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
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
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,
The Senate will meet a 12:00 NOON and resume
the gun liability bill.
10:30 AM. The
Committee's Defense Subcommittee will hold a hearing on the proposed
budget for the Department of Defense. Location: Room 192, Dirksen
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,
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.
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,
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
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,
Location: Room 216, Hart Building.
10:00 AM. The
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
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
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 firstname.lastname@example.org. 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
the "United States Patent and Trademark Fee Modernization Act of
|Wednesday, March 3
The House will meet at at 10:00 AM for
legislative business. It may consider
the "Copyright Royalty and Distribution Reform Act of 2003", under
suspension of the rules. It may also consider
the "United States Patent and Trademark Fee Modernization Act of
2003", subject to a rule. See,
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
the "Stock Option Accounting Reform Act". Location: Room 2128, Rayburn
10:30 AM. The
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
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
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
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
email@example.com. The PFF
also states that "Members of the media should contact David Fish at
202-289-8928 or firstname.lastname@example.org." 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).
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
email@example.com. For more information
contact Laura Phillips at 202 842-8891. Location: Sidley Austin, 1501 K
Street, NW, 6th Floor.
|GAO Reports on Competitive Sourcing by
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
[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
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
|US and EU Release Statement on GPS/Galileo
2/26. The US and EU released a joint statement on negotiations
regarding the Global Positioning System (GPS) and
the EU's satellite radio navigation system. See, US
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
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
2/25. Sun Microsystems announced that
Patricia Sueltz, EVP of Sun Services, is leaving Sun, effective immediately.
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
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
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
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
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
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.
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
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
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
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