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April 27, 2005, 9:00 AM, Alert No. 1,124.
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House Approves High-Performance Computing Revitalization Act

4/26. The House approved HR 28, the "High-Performance Computing Revitalization Act of 2005", by voice vote. HR 28 amends the High-Performance Computing Act of 1991, which is codified at 15 U.S.C. 5511, et seq. The Senate has yet to approve the bill.

This bill requires federal agencies to provide the U.S. research community access to the most advanced high performance computing systems and technical support. It requires federal agencies to support high performance computing for scientific and engineering applications. It requires the White House Office of Science and Technology Policy (OSTP) to direct an interagency planning process to develop and maintain a research development and deployment roadmap for the provision of high performance computing resources for the U.S. research community. It clarifies the missions of each of the federal agencies that have a role in developing or using high performance computing.

Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, and a cosponsor of HR 28, stated in the House that "This is very important legislation that deals with the competitiveness of the United States of America in the global marketplace. We are not going to be preeminent in the competitive world if we don't invest wisely and direct our resources in the proper way, because the competition is all over the place. It isn't one state against another. It's the United States against the world. Right now, we're ahead. That's the position I like. But when we look back, we see a lot of people following closely behind. That's why it's critically important that we do things like invest in high-performance computing so that we maintain our competitive edge."

Rep. Judy Biggert (R-IL) and others introduced this bill on January 4, 2005. It is a reintroduction, with modifications, of HR 4218 (108th Congress), the "High-Performance Computing Revitalization Act of 2004". The House, but not the Senate, approved HR 4218 in the last Congress.

House Appropriations Subcommittee Holds Hearing on FCC

4/26. The House Appropriation's Committee's Subcommittee on Science, State, Justice, and Commerce, and Related Agencies held a hearing on the Federal Communications Commission's (FCC) fiscal year 2006 appropriation.

FCC Chairman Kevin Martin wrote in his prepared testimony [6 pages in PDF] that the FCC "is requesting spending authority of $304,057,000 for Fiscal Year 2006, with a direct appropriation of $4,823,000. The Commission will raise the remainder, or $299,234,000, through regulatory fees. During the current fiscal year, the Commission has a spending level of $281,098,000".

Martin testified that a little over $3 Million of the requested increase in FY 2006 would go to "hire 26 limited term FTEs to increase Universal Service Fund audit and oversight activities in Fiscal Year 2006. The requested funds would provide for additional FTEs in the Office of Inspector General, the Wireline Competition Bureau, and the Office of Managing Director. The additional personnel would perform audits, provide investigational support to law enforcement agencies, review audit findings, and handle legal proceedings arising from the increased oversight, including actions to recover USF monies from beneficiaries that failed to use the funds in accordance with program rules. We will work with Congress to ensure the requested funds improve the efficiency of the programs and safeguard the USF from waste, fraud, and abuse."

The FCC's e-rate subsidy program is plagued by rampant fraud. See, for example, story titled "Five Indicted for Mail Fraud in Connection with FCC E-Rate Subsidy Program" in TLJ Daily E-Mail Alert No. 870, April 6, 2004. In a March hearing on e-rate program management, Rep. Joe Barton (R-TX), the Chairman of the House Commerce Committee, suggested ending the program. See, story titled "Chairman Barton Suggests Ending E-Rate Program" in TLJ Daily E-Mail Alert No. 1,097, March 17, 2005.

7th Circuit Rules on Implied Private Right of Action under 13(d) in Chinadotcom Case

4/26. The U.S. Court of Appeals (9thCir) issued its opinion [27 pages in PDF] in Edelson v. Ch'ien, a case involving Chinadotcom, one of its former directors, and  13(d) of the Securities and Exchange Act. The District Court dismissed, holding that former directors have no private right of action under  13(d). The Court of Appeals affirmed.

13(d) of the Securities and Exchange Act, which is codified at 15 U.S.C. 78m(d), requires the filing of reports with the Securities and Exchange Commission (SEC) by persons who directly or indirectly acquire ownership of 5% or more of certain types of securities.

Harry Edelson was an outside director of Chinadotcom from 1999 through 2003. He was not re-elected to the board of directors in a July 2003 annual meeting.

Raymond Ch'ien is Chairman of Chinadotcom. Peter Yip Hak Yung (Yip) is the Vice Chairman and CEO. Edelson and another outside director quarreled with Ch'ien and Yip over a stock buyback plan that would financially benefit Ch'ien and Yip, both of whom are major shareholders.

Edelson ran unopposed for re-election, but lost. 48 percent of shares were voted. The shares beneficially owned by Yip were voted against both Edelson and another independent director who was also defeated. Yip's shares constituted more than two-thirds of the votes against Edelson.

Edelson filed a complaint in U.S. District Court (NDIll) against Ch'ien, Yip, Asia Pacific Online and Chinadotcom alleging violation of 13(d) and tortious interference with prospective economic advantage. He requested injunctive relief and damages. He sought a new election.

The District Court dismissed the count alleging violation of  13(d).

The Court of Appeals requested a brief from the SEC. It sided with Edelson, arguing that he has an implied private right of action. However, the Court of Appeals affirmed the District Court.

The Court of Appeals held that there is not an express private right of action under  13(d). There is an implied private right of action, for those parties that the Congress intended to protect. The Court further reasoned that the Congress's concern in enacting the ownership reporting requirement was tender offers.

That is, "Congress sought to empower the common investor with adequate information regarding those seeking control of an issuer through a tender offer or other method of acquisition so that an individual investor is able to decide whether to retain or dispose of his stock."

"In short, there does not appear to be any indication in the language of 13(d) that Congress intended a remedy for individual investors who were not faced with the choice of retaining or disposing of their stock in the face of an imminent change in control."

This case is Harry Edelson v. Raymond Ch'ien, Peter Yip Hak Yung, Asia Pacific Online, and Chinadotcom Corporation, U.S. Court of Appeals for the 7th Circuit, No. 04-1299, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 03 C 7320, Judge Amy St. Eve presiding. Judge Ripple wrote the opinion of the Court of Appeals, in which Judges Bauer and Manion joined.

Federal Circuit Rules in Hoffer v. Microsoft

4/22. The U.S. Court of Appeals (FedCir) issued its opinion [14 pages in PDF] in Hoffer v. Microsoft, a patent case involving technology by which remote users of computer terminals obtain data concerning economic activity from an index, and interactively post and receive messages concerning economic topics.

Steven Hoffer is the holder of U.S. Patent No. 5,799,151, titled "Interactive Electronic Trade Network and User Interface". He filed a complaint in U.S. District Court (NDCal) against Microsoft and others.

The District Court held that the defendants did not infringe claim 21, and that claim 22 is invalid for indefiniteness.

The Court of Appeals affirmed the judgment of noninfringement. It reversed the judgment of invalidity on the ground of indefiniteness.

Judge Pauline Newman wrote a concurring opinion to express her "concern at the court's decision not to review the entirety of the appealed claim construction".

The Court of Appeals has also released one errata [PDF] and another errata [PDF], both of which correct two obvious typographical errors in the opinion.

This case is Steven Hoffer v. Microsoft Corporation, International Business Machines Corporation, and Ariba Inc., No. 04-1103, an appeal from the U.S. District Court for the Northern District of California, D.C. No. 01-CV-20731 JW, Judge James Ware presiding. Judges Newman Bryson and Dyk wrote the per curiam opinion of the Court of Appeals.

People and Appointments

4/26. The Senate Finance Committee approved the nomination of Robert Portman to be U.S. Trade Representative by a unanimous voice vote.

4/26. President Bush announced his intent to designate Duane Ackerman to be Chairman of the President's National Security Telecommunications Advisory Committee (NSTAC), for a one-year term. Ackerman is the Ch/CEO of BellSouth. Bush also announced his intent to re-designate Patricia Russo to be Vice Chairman of the NSTAC, for a one-year term. Russo is the Ch/CEO of Lucent Technologies. See, White House release.

4/26. President Bush announced his intent to nominate John Sullivan to be General Counsel of the Department of Commerce. He is currently Deputy General Counsel at the Department of Defense. Before that, he was a partner in the Washington DC office of the law firm of Mayer Brown Rowe & Maw. He has also worked in the Department of Justice's Office of Legal Counsel (OLC). See, White House release.

4/25. Chris Liddell was named Chief Financial Officer (CFO) of Microsoft, beginning May 9, 2005. He was previously CFO International Paper. Before that, he was CEO of Carter Holt Harvey, a New Zealand company. See, Microsoft release.

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Washington Tech Calendar
New items are highlighted in red.
Wednesday, April 27

The House will meet at 10:00 AM for legislative business. It may consider HRes 210, a resolution supporting the goals of World Intellectual Property Day. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business. At 11:30 AM it will resume consideration of HR 3, the highway bill.

9:30 AM. The High Tech DTV Coalition will hold a news conference to announce its formation and discuss its goals. For more information, contact Mary Greczyn, at mg at ftidc dot com or 202 393-4531 or John Alden at ja at ftidc dot com or 202 371-6793. A light breakfast will be served. Location: Information Technology Industry Council, 1250 I Street, NW, Suite 200.

9:30 AM. The Senate Judiciary Committee (SJC) has scheduled a hearing on the nomination of Paul Clement to be Solicitor General. The SJC frequently cancels hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

9:30 AM. The Senate Intelligence Committee will hold another hearing on the USA PATRIOT Act. Location: Room 216, Hart Building.

10:00 AM. The House Homeland Security Committee will meet to mark up HR __, the "Department of Homeland Security Authorization Act of FY 2006". Location: Room 2118, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "Who, What, Where, and When: An E-Commerce Taxation Update". The scheduled speaker is Stephen Kranz (Council On State Taxation). See, notice. Prices vary from $15 to $27. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch titled "Cable Broadband: Brand X Round Two". The speakers will be John Butler (Sher & Blackwell, counsel for Earthlink) and Nadan Joshi ( Federal Communications Commission's Office of General Counsel). RSVP to Wendy Parish at wendy@fcba.org. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

1:30 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "How Internet Protocol-Enabled Services Are Changing the Face of Communications: A View from Government Officials". The witnesses will be Lewis Billings (Mayor of Provo City, Utah), Diane Munns (Commissioner, Iowa State Utilities Board, on behalf of the National Association of Regulatory Utility Commissioners), Kenneth Fellman (Mayor of Arvada, Colorado, on behalf of: the National Association of Telecommunications Officers and Advisors), Charles Davidson (Commissioner, Florida Public Service Commission), John Perkins (President, National Association of State Utility Consumer Advocates), Karen Strauss (Alliance for Public Technology), and David Quam (National Governors Association). See, notice. The hearing will be webcast by the Committee. Press contact: Kevin Schweers (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2322, Rayburn Building.

2:00 PM. The National Cable & Telecommunications Association (NCTA) will hold a news conference. For more information, contact Pam Ford at 202 775-3629. Location: Murrow Room, National Press Club, 529 14th St. NW, 13th Floor.

Deadline to submit nominations to the Department of Commerce's (DOC) Technology Administration (TA) for the 2006 National Medal of Technology awards. See, TA notice. For more information, contact Mildred Porter at 202 482-5572 or nmt@technology.gov.

Thursday, April 28

The House will meet at 10:00 AM for legislative business. It may consider HRes 210, a resolution supporting the goals of World Intellectual Property Day. See, Republican Whip Notice.

9:30 AM. The House Judiciary Committee's Subcommittee on Crime Terrorism, and Homeland Security will hold another in its series of oversight hearings on the implementation of the USA PATRIOT Act. This hearing will focus on several provisions related to electronic surveillance and the Foreign Intelligence Surveillance Act (FISA), including  206, titled "Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978", and  215, titled "Access to Records and Other Items Under the Foreign Intelligence Surveillance Act". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

RESCHEDULED FOR APRIL 29. 9:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". See, agenda [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee's (SJC) has scheduled an executive business meeting. The SJC frequently cancels meetings without notice. The SJC rarely follows its published agendas. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

POSTPONED. 10:00 AM. The Senate Commerce Committee will hold a public hearing on S __, a bill pertaining to the use of video news releases (VNRs) by government agencies. See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov Location: Room 253, Russell Building.

11:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Dominican Republic Central America Free Trade Agreement". See, notice. The hearing will be webcast by the Committee. Location: Room 2322, Rayburn Building.

11:00 AM - 12:00 NOON. Microsoft will host a panel discussion. The speakers will be Bill Gates (Microsoft), Rick Rashid (SVP Microsoft Research), Sen. Patrick Leahy (D-VT), Rep. David Dreier (R-CA), and Shirley Tilghman (President of Princeton University). See, notice. Location: Montpelier Room, 6th floor, Madison Building, Library of Congress.

12:00 NOON - 1:30 PM. The Advisory Committee to the Congressional Internet Caucus will host a luncheon panel discussion titled "The Role of States and Cities in Regulating the Internet". The speakers will be Roger Cochetti (CompTIA), Deborah Tate (Tennessee Regulatory Authority), Rick Cimerman (National Cable & Telecommunications Association), a representative of the National League of Cities, and a representative of a Bell company. RSVP to Danielle Yates at 202 638-4370 or dyates at netcaucus dot org. Lunch will be served. Location: Room S-207 (Mansfield Room), Capitol Building.

12:00 NOON. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold its second hearing on the Committee Print of HR __ [52 pages in PDF], the "Patent Act of 2005". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Open Source & Public Domain Software: The Future of Health Care InfoTech Is Now!". The scheduled speakers are Cynthia Wark (USPHS), Rita Shapiro (USPHS), Suniti Ponkshe (Ponkshe Consulting Group), and Alan Goldberg (Goulston & Storrs). See, notice. Prices vary from $25 to $35. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

2:30 PM. The House Judiciary Committee's Subcommittee on Crime Terrorism, and Homeland Security will hold another in its series of oversight hearings on the implementation of the USA PATRIOT Act. This hearing will focus on  218, titled "Foreign Intelligence Information". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

3:00 PM. The Senate Judiciary Committee's Subcommittee on Immigration, Border Security and Citizenship and Subcommittee on Terrorism, Technology and Homeland Security have scheduled a joint hearing titled "Strengthening Border Security Between The Ports of Entry: The Use of Technology to Protect the Borders". The Senate Judiciary Committee frequently cancels hearings without notice. Sen. John Cornyn (R-TX) and Sen. Jon Kyl (R-AZ) will preside. Location: Room 138, Dirksen Building.

Friday, April 29

RESCHEDULED FROM APRIL 28. 9:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". See, agenda [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [460 pages in PDF] in its proceeding titled "In the Matter of: Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004 Implementation of Section 340 of the Communications Act". See also, FCC release [PDF]. This NPRM is FCC 05-24 in MB Docket No. 05-49. The FCC adopted this NPRM on February 4, 2005, and released it on February 7, 2005. See, story titled "FCC Releases SHVERA NPRM Regarding Significantly Viewed Signals" in TLJ Daily E-Mail Alert No. 1,073, February 9, 2005.

Deadline to submit nomination to the Internal Revenue Service (IRS) for membership on its Electronic Tax Administration Advisory Committee (ETAAC). See, IRS release and notice in the Federal Register, February 28, 2005, Vol. 70, No. 38, at Page 9701-9702.

Monday, May 2

The Senate will not meet on Monday, May 21 through Friday, May 6. See, Senate calendar.

Day one of a three day event hosted by Internet2 and titled "Spring 2005 Internet2 Member Meeting". See, notice. Location: Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, VA.

Tuesday, May 3

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "KP Permanent Make-Up v. Lasting Impression, Inc.: Fair Use and Likelihood of Confusion". The scheduled speakers are Beth Brinkmann (Morrison & Foerster, counsel for Lasting Impression), Patricia Millett (Assistant to the Solicitor General), Christine Farley (American University Washington law school). See, notice. Prices vary from $10 to $30. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Aptix v. Quickturn Design. This is an appeal from the U.S. District Court (NDCal) in a patent case. This case is D.C. No. C 98-00762 WHA (EDL) and App. Ct. No. 04-1368. Location: Courtroom 402, 717 Madison Place, NW.

Day two of a three day event hosted by Internet2 and titled "Spring 2005 Internet2 Member Meeting". See, notice. Location: Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, VA.

Wednesday, May 4

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ericsson v. Harris. This is an appeal from the U.S. District Court (NDTex) in a patent infringement case involving cellular telephony. This case is D.C. No. 3-98 CV 2903-M and App. Ct. No. 04-1444. Location: Courtroom 203, 717 Madison Place, NW.

1:00 - 5:00 PM. The U.S. Patent and Trademark Office's (USPTO) Nanotechnology Customer Partnership will hold a meeting. RSVP to Jill Warden at jill dot warden at uspto dot gov or 571 272-1267. See, notice. Location: USPTO, Madison Auditorium, South Side, 600 Dulany Street, Alexandria, Virginia.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) World RadioCommunication 2007 (WRC-07) Advisory Committee's Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues will meet. Location: FCC.

9:00 AM - 6:00 PM. Pulver.com will host a one day conference titled "IP-Based Communications Policy Summit". See, conference web site. Location: Plaza Hotel.

Day three of a three day event hosted by Internet2 and titled "Spring 2005 Internet2 Member Meeting". See, notice. Location: Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, VA.