|House Approves Bill that Includes the
Commercial Spectrum Enhancement Act
11/23. The House approved
HR 5419, a
composite bill that includes the "Commercial Spectrum Enhancement Act", the
"ENHANCE Act", and the "Universal Service Antideficiency Temporary
Suspension Act", on Saturday afternoon, November 20, 2004, by unanimous consent,
Rep. Fred Upton (R-MI), the
Chairman of the House Commerce
Committee's Subcommittee on Telecommunications and the Internet,
introduced this bill earlier in the day. See,
text of bill.
Title I of HR 5419 is titled the "Ensuring Needed Help Arrives Near Callers
Employing 911 Act of 2004" or "ENHANCE 911 Act".
Rep. Chip Pickering (R-MS), the
Vice-Chairman of the House Commerce
Committee, stated in the House that this bill will "improve, enhance, and
promote the Nation's homeland security, public safety, and citizen activated
emergency response capabilities through the use of enhanced 911 services". He
added that it will "further upgrade Public Safety Answering Point capabilities
and related functions in receiving E-911 calls" and "support in the construction
and operation of a ubiquitous and reliable citizen activated system". See,
Congressional Record, November 20, 2004, at Page H10219.
Title II of the bill is the "Commercial Spectrum Enhancement Act". Rep.
Pickering stated that this bill will "amend the National Telecommunications and
Information Administration Organization Act to facilitate the reallocation of
spectrum from governmental to commercial users".
HR 1320, also titled the "Commercial Spectrum Enhancement Act". The
House passed its version of HR 1320 on June 11, 2003. See, story titled "House
Passes Commercial Spectrum Enhancement Act" in
TLJ Daily E-Mail
Alert No. 679, June 12, 2003. The
Senate Commerce Committee passed its version of HR 1320 on June 26, 2003.
The Senate version included a provision exempting from auction spectrum for
fixed terrestrial services in the 12.2-12.7 GHz band, also known as the
NorthPoint amendment. (This amendment
is not in HR 5419.) See, story titled "Senate Commerce Committee Approves
Commercial Spectrum Enhancement Act" in
TLJ Daily E-Mail Alert
No. 689, June 27, 2003.
HR 1320, which is
also sponsored by Rep. Upton (at right), changes the process for reallocating spectrum
from federal users to commercial users, such as wireless broadband services. For
example, the Department of Defense (DOD)
currently uses spectrum in the 1710-1755 MHz
band. The National Telecommunications and
Information Administration (NTIA) and Federal
Communications Commission (FCC) have identified this band for reallocation.
The DOD will incur expenses to relocate to other spectrum bands. The bill
creates a Spectrum Relocation Fund, funded by auction proceeds, to compensate
federal agencies for the cost of relocating. The bill replaces the current role
of the House and Senate Appropriations Committees.
Bruce Josten of the U.S. Chamber of Commerce
praised the House action. He wrote in a
that "Opening up more spectrum is good for business and good for our economy ...
Releasing these licenses will open the gates of investment into the ailing
telecommunications market, create tens of thousands of jobs, and benefit American
Title III of the bill is the "Universal Service Antideficiency Temporary
Suspension Act". Rep. Pickering stated that this bill will "provide that funds
received as universal service contributions under section 254 of the
Communications Act of 1934 and the universal service support programs
established pursuant thereto are not subject to certain provisions of title 31,
United States Code, commonly known as the Antideficiency Act".
Also on November 20, Rep. Ed Markey
which addresses the Antideficiency Act issue.
On November 23, the Leadership Council
on Civil Rights (LCCR) issued a
statement, and the American Library Association
(ALA) issued a
statement, urging the Senate to approve HR 5419 and HR 5420, on the grounds that they
will exempt the schools and libraries e-rate subsidy program from the Antideficiency Act.
The LCCR and ALA state that these bills will "get the funds flowing again".
Meanwhile, on November 23, the Federal
Communications Commission (FCC) announced in a
[PDF] that its Universal Service
Administrative Company (USAC), which
administers the FCC's e-rate subsidy program, has "approved $24.2 million
in new funding for projects and services", and sent 194 commitment letters on
Monday, November 22, 2004 to schools and libraries receiving funding.
The FCC added that the "USAC had issued $764 million in commitment letters for
funding year 2004 before new letters were suspended in August. Letters to be
sent near the end of November will be for additional Funding Year 2004
commitments that have been approved for funding and for which cash is available.
Additional Funding Year 2004 commitments will be issued in the future as money
|House Approves CREATE Act Again
11/20. The House approved
S 2192, the
CREATE Act, by unanimous consent on Saturday, November 20, 2004. The Senate previously
approved the bill. It is ready for President Bush's signature.
This is the "Cooperative Research and Technology Enhancement (CREATE)
Act of 2004", a bill to promote collaborative research.
The House approved its version of the bill,
on March 10, 2004 by a voice vote. See,
titled "House Passes CREATE Act" in
TLJ Daily E-Mail
Alert No. 854, March 11, 2004. The Senate approved its version,
S 2192, on
June 25, 2004. The bills are substantially the same. The report language that
accompanies the two bills differs. There may also have been some competition
over bragging rights to authorship of the bill.
Also, the language of the CREATE Act is included in
S 3021, the
"Family Entertainment and Copyright Act of 2004", which the Senate approved on
Saturday, November 20, 2004. See,
titled "Senate Approves Copyright Bill" in TLJ Daily E-Mail Alert No. 1,024,
November 23, 2004.
The CREATE Act amends Section 103(c) of the Patent Act, which is codified at
35 U.S.C. § 103, to
address the August 8, 1997
the U.S. Court of Appeals for the Federal
Circuit in OddzOn Products, Inc. v. Just Toys, Inc., which ruled that
derived prior art may serve as evidence of obviousness.
Section 103(c) currently provides a safe harbor for inventions that are the
product of collaboration involving co-inventors within a single company.
However, scientific research is increasingly being conducted jointly by multiple
companies, universities, government labs, and/or other entities.
The holding in the OddsOn case threatens to discourage collaborative
research, where the scientists involved are not employed by the same company or
entity. Basically, the Court interpreted Section 103(c) to mean that prior art
under Sections 102(f) or 102(g) could be used to determine the obviousness of an
invention where there is no common ownership or assignment of the invention and
information being shared among the collaborators, and the information exchanged
is not publicly known. The bill amends Section 103 to provide that patentability
is not precluded in the case of research conducted across entities pursuant to a
joint research agreement.
Sen. Patrick Leahy (D-VT), is a
cosponsor of S 2192, and the ranking Democrat on the Senate Judiciary Committee.
He spoke in the Senate on November 20 to thank the House for passing S 2192,
and to offer his explanation of the bill. See, Congressional Record,
November 20, 2004, at Page S11775.
He said that "In 1980, Congress passed the Bayh-Dole Act, which encouraged
private entities and not-for-profits such as universities to form collaborative
partnerships that aid innovation. Prior to the enactment of this law,
universities were issued fewer than 250 patents each year. Thanks to the Bayh-Dole
Act, the number of patents universities have been issued in more recent years
has surpassed 2,000--adding billions of dollars annually to the U.S. economy."
He continued that "The CREATE Act corrects a provision in the Bayh-Dole Act
which, when read literally, runs counter to the intent of that legislation. In
1997, the United States Court of Appeals for the Federal Circuit ruled, in
Oddzon Products, Inc. v. Just Toys, Inc., that non-public information may in
certain cases be considered ``prior art´´ -- a standard which generally prevents
an inventor from obtaining a patent. The Oddzon ruling was certainly sound law,
but it was not sound public policy, and as a result some collaborative teams
have been unable to receive patents for their work. As a consequence, there is a
deterrent from forming this type of partnership, which has proved so beneficial
to universities, the private sector, the American worker, and the U.S. economy."
He concluded that "Recognizing Congress' intended purpose in passing the Bayh-Dole
Act, the Federal Circuit invited Congress to better conform the language of the
act to the intent of the legislation. The CREATE Act does exactly that by
ensuring that non-public information is not considered ``prior art'' when the
information is used in a collaborative partnership under the Bayh-Dole Act. The
bill that the House passed today also includes strict evidentiary burdens to
ensure that the legislation is tailored narrowly so as only to achieve this goal
that -- although narrow -- is vitally important."
|House Approves Commercial Space
11/20. The House approved
the "Commercial Space Launch Amendments Act of 2004", on Saturday, November 20,
2004, by a vote of 269-120. See,
Roll Call No. 541. The
vote was partisan. Republicans voted 206-2, while Democrats voted 63-117.
Rep. Dana Rohrabacher (R-CA),
Rep. Sherwood Boehlert (R-NY), and
Rep. Bart Gordon (D-TN) introduced
this bill on November 18, 2004. It was referred to the
House Science Committee. The
Committee held no hearing or markup on this bill. However, this bill is similar
to HR 3752,
which the House approved back on March 4, 2004, by a vote of
402-1. See, Roll Call No.
39. See also,
which was approved by the Senate Commerce Committee on July 24, 2004.
HR 5382 amends the Commercial Space Launch Act, Public Law No. 98-575, which
is codified at
49 U.S.C. § 70101, et seq.
The House Science Committee wrote in a
on November 20 that this bill "will help promote the emerging commercial human
space flight industry by putting it on a more solid regulatory footing. It will also
make it easier to launch new types of reusable suborbital rockets by allowing
the Federal Aviation Administration (FAA) to issue experimental permits that can
be granted more quickly and with fewer requirements than licenses."
The Committee elaborated that "Among the
negotiated changes in the bill is increased authority for FAA to regulate
launches with regard to the safety of passengers and crew. In both the original
and current versions, FAA is given full jurisdiction to regulate launch vehicles
and procedures to ensure the safety of non-participants (i.e.: third parties on
the ground). H.R. 5382 goes further in safety regulation by allowing FAA to
regulate launch vehicles and procedures that have been shown to be dangerous or
potentially dangerous to passengers and crew. The bill also ensures
participants are fully aware of the inherent risks of human space travel by
requiring launch companies to provide customers and crew with a disclaimer
warning that the federal government has not certified the safety of the
vehicle." (Parentheses in original.)
|Appropriations Bill Includes SHVERA
11/20. The House and Senate both approved the conference report on
the huge omnibus appropriations bill, on Saturday, November 20, 2004. It includes
a revised version of the "Satellite Home Viewer Extension and Reauthorization
Act of 2004", also known as the "W. J. (Billy) Tauzin Satellite Television Act
The House previously approved an earlier version of the SHVERA as a stand
HR 4518, by
voice vote on October 6, 2004.
As of publication of this issue, the conference report on HR 4818 was
not yet published in the Congress's Thomas web site. However, it is in the
House Rules Committee web site. See,
web page with
hyperlinks to the different divisions of the bill. The SHVERA is in
Division J [PDF scan],
titled "Other Matters". This copy is a PDF scan of 316 pages. It is a very
long download. The SHVERA is at PDF pages 122-228 of the Rules Committee draft.
Rep. Joe Barton
(R-TX) (at right), the Chairman of the
House Commerce Committee, stated
in a release
that "Passage of SHVERA will increase competition and consumer choice by both
allowing satellite providers to continue to provide local and network broadcasts to
viewers otherwise unable to receive local programming in their area, and to carry
certain out-of-market signals in a comparable way to what cable operators are
currently permitted to do. These provisions mean rural Americans will not be cut
off from the world of information. From Washington to the distant expanses of
Alaska, viewers will be able to have their fingers on the pulse of breaking
news. Through the telecommunications medium, we truly have the ability to
technologically narrow the expanse of our universe."
Sen. John McCain (R-AZ) stated in a
release that "with passage of this bill, Americans who are unable to receive a
network television station over-the-air, often those who live in rural areas,
will continue to be able to enjoy network programming via satellite.
Additionally, I am pleased that passage of this bill will, for the first time,
ensure that these same Americans can enjoy digital High-Definition television
programming via satellite, even if they are unable to receive the broadcast
Sen. McCain continued that "The idea is simple: a consumer who pays good
money for an expensive high definition television set should not be denied the ability
to enjoy exclusive network programming like the Super Bowl or the All-Star game in high
definition merely because he lives in a rural area. This is the right result for rural
Americans. I am also proud of this legislation because it will eliminate the
discriminatory practice of splitting local broadcast stations, often
foreign-language or religious broadcast stations, between two satellite dishes."
The TLJ Daily E-Mail Alert will not be published on Thursday, November
25, or Friday, November 26, 2004.
|Washington Tech Calendar
New items are highlighted in red.
|Wednesday, November 24
The House is scheduled to meet at 2:00 PM.
The Senate is scheduled to meet at 5:00 PM.
|Friday, November 26
There will be no issue of the TLJ Daily E-Mail Alert.
|Monday, November 29
Court will return from the recess that it began on Monday, November 25, 2004. See,
List [14 pages in PDF] at page 14.
6:00 - 9:15 PM. The DC Bar Association
will host a continuing legal education (CLE) program titled "How to Litigate
an Intellectual Property Case Series, Part 3: How to Litigate a Patent Case".
The speaker will be Patrick Coyne (Finnegan Henderson). See,
Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C.
Bar Conference Center, B-1 Level, 1250 H St., NW.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) in response to its notice of proposed
rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM
at its August 4, 2004 meeting, and released it on August 12, 2004. This NPRM is FCC
04-189 in EB Docket No. 04-296. See,
notice in the Federal Register, August 30, 2004, Vol. 69, No. 167, at
Pages 52843 - 52847.
|Tuesday, November 30
8:30 AM - 3:00 PM. The Department of Commerce's
(DOC) National Institute of Standards and Technology's
(NIST), Advanced Technology Program Advisory Committee will meet. Pre-registration is
required. Contact Carolyn Peters by November 23 at
email@example.com or 301 975-5607. See,
notice in the Federal Register, November 9, 2004, Vol. 69, No. 216, at
Page 64907. Location: NIST, Administration Building, Lecture Room B,
Extended deadline to submit comments to Federal
Communications Commission (FCC) in response to its
Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by
unlicensed devices of broadcast television spectrum where the spectrum is not
in use by broadcasters. See,
titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in
TLJ Daily E-Mail Alert No.
898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use
of TV Spectrum" in TLJ
Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos.
04-186 and No. 02-380. See,
notice (setting original deadlines) in the Federal Register, June 18,
2004, Vol. 69, No. 117, at pages 34103-34112; and
notice [PDF] of extended deadlines, and
|Wednesday, December 1
9:00 AM. Federal
Communications Commission (FCC) Commissioner
Kathleen Abernathy will hold
an event titled "briefing for members of the media". She will discuss her
role in the ITU Global Symposium for Regulators (GSR) Conference, to be held in
Geneva, Switzerland on December 8-10, 2004. RSVP to Marybeth McCarrick at 202 418-0654
or Meribeth.McCarrick@fcc.gov. Location:
FCC, Room 8B115, 445 12th Street, SW.
12:15 PM. The Federal Communications Bar
Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch.
The title of the event is "Meet the Trade Press". No RSVP is required.
Location: NAB, 1771 N St., NW.
|Thursday, December 2
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Rainbow Push Coalition v. FCC,
No. 01-1072. Judges Henderson, Rogers and Tatel will preside. Location: Prettyman
Courthouse, 333 Constitution Ave., NW.
The Federal Communications Bar Association
(FCBA) will host an event titled "18th Annual Chairman's Dinner".
The reception will begin at 6:00 PM. The dinner begins at 7:30 PM. Location:
Washington Hilton, 1919 Connecticut Ave., NW.
Day one of a two day event hosted by the Federal
Communications Bar Association (FCBA) and the
Practicing Law Institute (PLI) titled "22nd
Annual Telecommunications Policy and Regulation Conference". The price to
attend ranges from $1,165.50 to $1,295.00. See,
[PDF]. Location. Watergate Hotel, 2650 Virginia Ave., NW.
|Friday, December 3
Day two of a two day event hosted by the
Federal Communications Bar Association
(FCBA) and the Practicing Law Institute (PLI)
titled "22nd Annual Telecommunications Policy and Regulation Conference".
The price to attend ranges from $1,165.50 to $1,295.00. See,
[PDF]. Location. Watergate Hotel, 2650 Virginia Ave., NW.
12:00 NOON - 2:00 PM. The
Progress and Freedom Foundation (PFF) will
host a panel discussion titled "The Myths and Realities of Universal Service:
Revisiting the Justification for the Current Subsidies". The speakers will
include Randolph May and Joseph Kraemer. See,
page. Press contact: Patrick Ross at 202 289-8928 or
firstname.lastname@example.org. Lunch will be served. Location: Room
B369, Rayburn Building.
|Monday, December 6
9:30 AM. The
U.S. Court of Appeals (DCCir) will hear oral argument in James A. Kay v.
FCC, No. 02-1175. This is a case pertaining to the finder's preference rule,
47 C.F.R. § 90.173(k)(2)(1992). See, FCC
brief [pages in
PDF]. Judges Edwards, Sentelle and Randolph will preside. Location: Prettyman
Courthouse, 333 Constitution Ave., NW.
10:00 AM. The U.S. Court
of Appeals (FedCir),
Panel A, will hear oral argument in Designing Health v. Erasmus
(No. 03-1438), Northpoint Technology, Ltd v. MDS America, Inc.
(No. 04-1249), and Taylor v. DaimlerChrysler (No. 04-1319). The
Northpoint Technology case
is an appeal from the U.S. District Court (SDFl) involving claims infringement
of patents pertaining to use of DBS spectrum for terrestrial wireless services.
See, FedCir calendar.
Location: Courtroom 402, 717 Madison Place, NW.
10:00 AM. The U.S. Court of
Panel B, will hear oral argument in ISCO International v. Concuctus,
Inc. (No. 04-1007) and Bellehumeur v. Bonnett (No.
See, FedCir calendar.
Location: Courtroom 203, 717 Madison Place, NW.
Deadline to submit comments in response to the notice of proposed rulemaking
by the Department of Defense (DOD),
General Services Administration (GSA), and National
Aeronautics and Space Administration (NASA) regarding telecommuting by federal
notice in the Federal Register, October 5, 2004, Vol. 69, No.192, at Pages
59701 - 59702.
|Greenspan Discusses Role of Intellectual
Property in Trade
11/19. Federal Reserve Board
(FRB) Chairman Alan
Greenspan gave a
speech in Frankfurt, Germany on financial policy and currencies. However, he
also referenced the role of intellectual property in trade and globalization.
He said that "globalization of trade in goods, services, and assets continues
to move forward at an impressive pace, despite some indications of increased
resistance to that process and the evident difficulties in completing the Doha
Round. The volume of trade relative to world gross domestic product has been
rising for decades, largely because of decreasing transportation costs and
lowered trade barriers. The increasing shift of world GDP toward items with
greater conceptual content has further facilitated increased trade because ideas
and services tend to move across borders with greater ease and speed than
Greenspan tends not to use the phrase "intellectual property", preferring
instead "conceptual products". See, Greenspan's April 4, 2003,
speech titled "Market Economies and Rule of Law", and
titled "Greenspan Addresses Intellectual Property Laws" in
TLJ Daily E-Mail
Alert No. 638, April 7, 2003. See also, Greenspan's
speech of February 27, 2004, and story "Greenspan Discusses Property Rights
in Conceptual Products" in
TLJ Daily E-Mail
Alert No. 846, March 1, 2004.
|People and Appointments
11/23. CompTel/ASCENT announced
that Russell Frisby will step down as CEO in 2005, remaining until a
successor is found. See,
11/23. The Federal Communications Commission
(FCC) released its
Report and Order and Further Notice of Proposed Rulemaking (FNPRM) [54 pages
in PDF] regarding the children's programming obligations of digital television
broadcasters. The FCC announced, but did not release, this item at its meeting
back on September 9, 2004. This item is FCC 04-221 in MM Docket 00-167. It states
that comments are due by March 1, 2004, and that reply comments are due by April 1,
2004. See, story titled "FCC Adopts Report and Order Re Children's Programming
Obligations of DTV Broadcasters" in
TLJ Daily E-Mail
Alert No. 975, September 13, 2004.
11/19. The U.S. Court of
Appeals (FedCir) issued its
opinion [11 pages in
PDF] in Catalina Marketing International v. Coolsavings.com, a
patent case in which the Court of Appeals affirmed the District Court's claim
construction and dismissal. Catalina Marketing International, Inc. owns
U.S. Patent No. 4,674,041 titled "Method and Apparatus for Controlling the
Distribution of Coupons." Coolsavings.com, Inc. operates a web site that uses
inputted user demographic information to target coupon offers for various products to
potential customers. Catalina filed a complaint in U.S. District Court (NDIll) against
Coolsavings alleging patent infringement. The District Court dismissed the complaint
following construction of the claim. Catalina appealed.
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