11/29. The Supreme Court released an Order List [14 pages in PDF] which states that the Court declined to take several technology related cases.

The Court denied certiorari, without opinion, in University of Rochester v. G.D. Searle, No. 04-476. See, Order List at page 10. This lets stand the February 13, 2004 opinion of the U.S. Court of Appeals (FedCir). See also, Order denying petition for rehearing, with dissenting and concurring opinions.

This is a drug patent case involving invalidity for lack of written description and invalidity for lack of enablement.

The Court also denied certiorari, without opinion, in Pellegrini v. Analog Devices, No. 04-485. See, Order List at page 4. This lets stand the July 8, 2004 opinion [MS Word] of the U.S. Court of Appeals (FedCir).

Pellegrini owns U.S. Patent 4,651,069 titled "Back-emf brushless d.c. motor drive circuit". Analog Devices develops and fabricates integrated circuit chips, including a line of chips named ADMC. Pellegrini filed a complaint in U.S. District Court (DMass) against Analog Devices alleging direct infringement and inducement of infringement of the ’069 patent, contending that certain claims of the ’069 patent read on the combination of ADMC chips and other components in brushless motors. The District Court granted partial summary judgment to Analog Devices. The Court of Appeals affirmed.

The Court also denied a motion to file a petition for writ of certiorari out of time in Global Naps v. Massachusetts Department of Telecommunications. See, Order List at page 1.

11/29. The U.S. Court of Appeals (3rdCir) issued its divided opinion [102 pages in PDF] in Forum for Academic and Institutional Rights v. Rumsfeld. Various plaintiffs disagree with the policy of the Congress in maintaining the Solomon amendment. They assert a violation of their First Amendment free speech rights. The District Court denied their motion for a preliminary injunction. The divided Courts of Appeals reversed.

The majority held unconstitutional a part of the National Defense Authorization Act for Fiscal Year 1995 known as the Solomon Amendment. It provides, in part, that no Department of Defense (DOD) funding shall be given to any educational institution with a policy of denying or effectively preventing the military from obtaining entry to campuses, or access to students on campuses, for recruiting purposes. This provision takes its name from former Rep. Gerald Solomon (R-NY). The 1995 bill is Public Law No. 103-337. It has been amended, and is now codified at 10 U.S.C. § 983.

No educational institution joined in the lawsuit. (Nevertheless, the District Court found standing in the first part of its opinion [PDF].) However, various educational institutions, and especially law schools, wish to both receive funding from the DOD, and discriminate against military recruiters. The plaintiffs, the Forum for Academic and Institutional Rights (no web site), and other groups and individuals, filed a complaint in 2003 in U.S. District Court (DNJ) against Secretary of Defense Donald Rumsfeld and other department heads alleging that the Solomon amendment violates their First Amendment free speech rights. See, Second Amended Complaint [35 pages in PDF].

The District Court denied the plaintiffs' motion for a preliminary injunction. See, second part of opinion [49 pages in PDF], dated November 5, 2003, and published at 291 F. Supp. 2d 269. This appeal followed.

The Court of Appeals, in a divided decision, reversed.

The facts giving rise to this case do not involve technology. Nor do they involve speech. Nevertheless, communications and technology lawyers concerned with developments in First Amendment law may find this case significant. The majority determined that this case does implicate speech, and applied the doctrine of compelled speech, which is also involved in several types of regulation of communications. Compelled speech is involved, for example, in forced access to cable facilities, must carry, equal time, free time for candidates, and truth in billing.

The majority opinion relies upon several leading cases from communications law, including Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989), Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In addition, the dissent raises FCC v. League of Women Voters, 468 U.S. 364 (1984).

Moreover, it is likely, given the importance attached to the Solomon amendment by the Congress, the President, and the DOD, that the Department of Justice (DOJ) will seek en banc rehearing and/or certiorari in this case. Hence, it is possible that the Supreme Court will write an opinion on compelled speech.

Judge Thomas Ambro wrote the opinion of the Court, in which Judge Walter Stapleton joined. He did not argue that the Solomon amendment prohibits or restrains speech. Nor does it compel speech. Rather, he reasoned, there is a "danger of misattribution". That is, law students at schools such as Yale University might misattribute the speech or policies of the DOD to their professors. He reasoned that the Solomon amendment thus "requires law schools to express a message that is incompatible with their educational objectives".

In addition, Judge Ambro, a Clinton appointee, applied the strict scrutiny standard.

Judge Ruggero Aldisert wrote a 39 page dissent, which begins at page 63. He wrote, "I would hold that Congress' use of the spending power and fulfillment of the requirements to maintain the military under Articles I and II do not unreasonably burden speech and, therefore, do not offend the First Amendment. I apply the balance-of-interests test and decide that the interest of protecting the national security of the United States outweighs the indirect and attenuated interest in the law schools’ speech, expressive association and academic freedom rights. The Solomon Amendment survives the constitutional attack because its provisions, the 2004 amendments thereto and related regulations, govern conduct while only incidentally affecting speech. In serving its compelling interest in recruiting military lawyers, the statute does not require the government to engage in unconstitutional conduct."

This case is Forum for Academic and Institutional Rights, et al. v. Donald Rumsfeld, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 03-4433, an appeal from the U.S. District Court for the District of New Jersey, D.C. No. 03-cv-04433, Judge John Lifland presiding.

See also, Georgetown University law school web page with hyperlinks to pleadings in this case.

11/29. President George Bush announced his intent to nominate Carlos Gutierrez (at right) to be Secretary of Commerce. Gutierrez is CEO and Chairman of the Board of the Kellogg Company, a producer of breakfast cereals and other foods. See, White House release. Bush and Gutierrez both spoke at a White House event. Bush stated that "We'll reduce the burden of junk lawsuits and regulations on our entrepreneurs. We'll reform our outdated tax code to eliminate needless paperwork and encourage savings, investment and growth. We'll continue our commitment to free and fair trade." See, transcript. If confirmed by the Senate, he will replace Donald Evans.

11/29. Steve Friedman, Chairman of the President's National Economic Council, announced his resignation. President Bush stated in a release that "Steve played a valuable role in enacting the Jobs and Growth Act of 2003 that helped move our economy from recession to the robust growth we are experiencing today. As a key member of my White House senior staff, Steve has led efforts to develop the policies that are strengthening our economy and helping to create jobs. Steve has done an excellent job of coordinating the work of my economic team and has played a key role in developing the economic policies for my second-term agenda."

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The Senate will not meet until Tuesday, December 7.

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 carolyn.peters@nist.gov 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, Gaithersburg, MD.

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, story 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 erratum [PDF].

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.

11:00 AM - 12:00 NOON. Dan Glickman, P/CEO of the Motion Picture Association of America (MPAA), will give a speech on technology and online infringement. This event is free and open to the public. RSVP to use@gwu.edu or 202 994-7706. Location: George Washington University, Jack Morton Auditorium, Media and Public Affairs Building, 805 21st St., NW.

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.

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.

10:00 AM. Bob Liscouski, Assistant Secretary of Homeland Security for Infrastructure Protection, will give a speech at a Federal Deposit Insurance Corporation (FDIC) meeting titled "Protecting the Financial Sector: A Public and Private Partnership". Location: George Washington University, Media and Public Affairs Building, 805 21st St. 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, registration form [PDF]. Location. Watergate Hotel, 2650 Virginia Ave., NW.

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, registration form [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, notice and online registration page. Press contact: Patrick Ross at 202 289-8928 or pross@pff.org. Lunch will be served. Location: Room B369, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a brown bag lunch titled "Telecom Act Rewrite: Following the Money Trails". The speakers will be Rudy Baca (Precursor Group), Jonathan Askin (General Counsel of Pulver.com), James Gattuso (Heritage Foundation), Lawrence Movshin (Wilkinson Barker & Knauer), and Carolyn Brandon (CTIA). See, notice. Prices to attend range from $15 to $30. For more information, call 202 626-3463. Location: CTIA, 1400 16th Street, NW.

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 Appeals (FedCir), Panel B, will hear oral argument in ISCO International v. Concuctus, Inc. (No. 04-1007) and Bellehumeur v. Bonnett (No. 04-1258). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. See, notice [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C305 (Commission Meeting Room).

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 contractors. See, notice in the Federal Register, October 5, 2004, Vol. 69, No.192, at Pages 59701 - 59702.

The Senate will meet at 9:30 AM.

Hannukah.

10:00 AM. The Supreme Court will hear oral argument in Granholm v. Heald, No. 03-1116, Michigan Beer & Wine Wholesalers v. Heald, No. 03-1120, and Swedenburg v. Kelly, No. 03-1274. See, schedule [PDF]. These cases involve constitutional challenges to state restraints on the direct sales of alcoholic beverages, including internet wine sales.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel C, will hear oral argument in Stambler v. RSA Security (No. 04-1129) and AT&T v. Microsoft (No. 04-1285). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel D, will hear oral argument in Block Financial v. Yodlee, Inc. (No. 04-1087) and McKenchnie Vehicle Components v. Lacks Industries, Inc. (No. 04-1278). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "2004 Intellectual Property Law Year in Review Series: Part 1 -- Patent Update". The speakers will be Bradley Wright (Banner & Witcoff) and Kevin Duncan (Hunton & Williams). See, notice. 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.

EXTENDED TO DECEMBER 21. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP). This NPRM is FCC 04-187 in ET Docket No. 04-295. The FCC adopted this NPRM at its August 4, 2004 meeting, and released it on August 9. See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004. See, notice in the Federal Register, September 23, 2004, Vol. 69, No. 184, Pages 56976 - 56987. See also, notice of extension [PDF].