5/31. The Supreme Court issued three opinions, none of which are technology related. The Supreme Court has yet to issue its opinions in MGM v. Grokster (regarding copyright and P2P systems), NCTA v. Brand X (regarding regulation of broadband internet services), and Merck v. Integra (regarding a research exemption to patent infringement).

The Supreme Court denied certiorari in Global Naps v. Verizon New England, No. 04-1284. See, Order List [10 pages in PDF] at page 4.

The Supreme Court denied rehearing in Focus Media v. NBC, No. 04-1107. See, Order List [10 pages in PDF] at page 9. On August 2, 2004, the U.S. Court of Appeals (9thCir) issued its opinion [23 pages in PDF] in this involuntary Chapter 7 bankruptcy case involving a company that booked and paid for commercial spots from television and radio stations on behalf of advertising clients. The Appeals Court affirmed the District Court. This case is App. Ct. No. 03-55808, and U.S. District Court (CDCal) No. CV-01-01146-AHS.

The Supreme Court denied rehearing in Colida v. Qualcomm, No. 04-8643, and Colida v. Sanyo, No. 04-8644. See, Order List [10 pages in PDF] at page 10.

The Supreme Court announced that "The Court will take a recess from Tuesday, May 31, 2005, until Monday, June 6, 2005." See, Order List [10 pages in PDF] at page 10.

5/31. The Government Accountability Office (GAO) released a report [92 pages in PDF] titled "Health Information Technology: HHS Is Taking Steps to Develop a National Strategy".

This report reviews the Department of Health and Human Services' (HHS) efforts to develop and implement a national health information technology (IT) strategy. It also addresses lessons learned from the Department of Defense's (DOD) and Veterans Administration's (VA) experiences with implementing electronic health records. Finally, it addresses the experience of other countries (Canada, Denmark and New Zealand) in modernizing their health IT infrastructures.

The report states that "The U.S. health care delivery system is an information-intensive industry that is complex and highly fragmented with estimated spending of $1.7 trillion in 2003. In April 2004, President Bush announced a health information technology (IT) plan that calls for the development and implementation of a strategic plan to guide the nationwide implementation of health IT in both the public and private health care sectors to prevent medical errors, improve quality, and produce greater value for health care expenditures."

The report finds that the HHS "is taking initial steps toward developing a national strategy for health IT". But, it cautions, "HHS has not established milestones for the completion of phase I, nor has it defined plans for phases II and III. Without defined milestones, it remains unclear when the important activities of phase I will be completed to provide the building blocks needed to support the activities of the subsequent phases."

5/31. The U.S. Court of Appeals (1stCir) issued its opinion in Johnson v. Gordon, a copyright case. Calvin Johnson wrote a song. He asserts that the defendants, Allen Gordon, the members of the group named "Sisters With Voices", and others, copied, recorded, and sold his song, titled "You're the One".

He filed a complaint in U.S. District Court (DMass) alleging, among other things, copyright infringement. The District Court granted summary judgment to the defendants.

The Appeals Court affirmed. The opinion includes a long and careful analysis of whether the defendants' song met the test of substantially similarity. It concluded that it did not, and hence, affirmed the District Court.

This case is Calvin Johnson v. Allen Gordon, et al., U.S. Court of Appeals for the 1st Circuit, No. 04-2475, an appeal from the U.S. District Court for the District of Massachusetts. Judge Selya wrote the opinion of the Court of Appeals, in which Judges Lynch and Lipez joined.

5/25. Anthony Wayne, Assistant Secretary of State for Economic and Business Affairs, gave a speech in Chicago, Illinois in which he discussed the theft of intellectual property in the People's Republic of China.

He said that this "is a struggle that may take years to win". He said that China should enforce IPR "for its own future growth. China would like its industries to move up the technological value-added ladder". He added that for "this industrial transformation will face barriers if Chinese holders of patents, trademarks and copyrights cannot count on their intellectual property being protected". He did not offer any explanation for why the Chinese government would then enforce the IPR of both domestic and foreign holders.

Wayne (at right) said that "My job is to help manage the Trade and Economic Issues portion of the U.S.-China relationship, working with my colleagues in USTR, Commerce, and Treasury."

He said that "Big problems remain in areas that affect products and services where the U.S. has a competitive advantage -- IPR, services, agriculture, government procurement of software, transparency, direct selling and distribution, standards, and industrial policies. This Administration is working vigorously to address these problems, using the most effective tools at our disposal, including our trade remedy laws."

He continued that China agreed to protect IPR in its 2001 World Trade Organization (WTO) accession agreement, but that China began "a slowdown in WTO implementation in 2003".

He identified two successes of U.S. diplomacy, first, in getting the Chinese government to back down on wireless encryption standards, and second, in the semiconductor value added tax (VAT) proceeding at the WTO.

He asserted that "This Administration ... places the highest priority on stemming the tide of intellectual property rights (IPR) infringement in China. Counterfeiting and piracy in China is out of control". He added that "We will achieve measurable progress on IPR, make no mistake about it. At the same time, we understand this is a struggle that may take years to win."

He then made the argument that China should eventually find that it is in its own interest to protect IPR. He said that "We believe that China should begin to take IP seriously not only to mollify foreign critics, like us, but for its own future growth. China would like its industries to move up the technological value-added ladder, and they are beginning to do so in computer technology, biotechnology and other fields. But this industrial transformation will face barriers if Chinese holders of patents, trademarks and copyrights cannot count on their intellectual property being protected. This trend is growing and is serious."

He cited a recent example of a Chinese phone manufacturer whose products were counterfeited in China. However, Wayne went on to state that many Chinese government practices discriminate in favor of domestic companies, and against foreign companies. He offered explanation for why, if the Chinese government were to protect the IPR of its domestic companies, it would also equally extend this protection to foreign companies.

Standards Setting and Extraction of IPR. Wayne said that "We have also seen a potentially troubling trend as some Chinese ministries have begun to promulgate Standards Policies that intentionally limit market access and aim to extract technology and intellectual property from foreign rights-holders. Many in U.S. industry see the objective of these policies as the support for development of Chinese industries that are higher up the economic value chain."

He said that "The so-called ``WAPI´´ (Wireless Authentication and Privacy Infrastructure) wireless encryption standard being promoted by China, along with the Chinese-specific wireless mobile handheld telephone ``3rd Generation´´ standard are perhaps the most well-known standards issues. But there are a range of such concerns related to standards, China's draft anti-competition law and worrying moves to require patent-holders to 'pool' their patents to conform with future Chinese standards."

Government Procurement of Software. Wayne described recent actions by the Chinese government. He said that "In November, 2004, China's Ministry of Information Industry and Ministry of Finance released an outline of the draft software regulations that would define ``domestic software´´ very narrowly -- to qualify, a product would have to be made in China, the IPR would have to be held by a PRC person, and China-based development costs would have to comprise at least 50 percent of total development costs. If domestic products or services are not available under reasonable terms, the draft regulations would permit foreign software to be considered, but preference would be given to foreign firms that conduct yet-to-be defined levels of China-based research and development, investment, subcontracting, or taxable transactions. In March 2005, China released a more complete draft of the measures, which maintains many of these restrictive conditions."

Wayne said that these proposed regulations "would put U.S. firms at a significant disadvantage in the Chinese market. In a country where piracy of computer software is rampant, government ministries together comprise, by far, the largest market for legitimate software."

He said that "We continue to raise this issue with Chinese officials".

Doha. Wayne said that "We expect China to take a leadership role in ensuring the Doha trade round moves forward on key topics, such as agriculture and non-agricultural market access issues, especially in trade among developing world countries."

Transparency. Wayne also discussed transparency in China. He said that "one overarching problem concerns Transparency. China's opaque regulatory process, overly burdensome licensing and operating requirements allow Chinese regulatory authorities to continue to frustrate efforts of U.S. providers of insurance, express delivery, telecommunications and other services to achieve their full market potential in China. While China's Ministry of Commerce has made laudable moves toward adopting WTO transparency norms, other ministries and agencies have lagged behind. The Administration remains committed to seeking improvements in this area, and we have specific suggestions concerning transparency that we believe will help foreign firms understand the Chinese market and work with the Chinese regulatory system."

While Wayne complained about the Chinese government's lack of transparency, the day before, Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee (SCC), gave a speech to the National Spectrum Managers' Association in which advocated less transparency at the SCC and the Federal Communications Commission (FCC). He said of "the Sunshine Law", for example, "I really don't like certain aspects of that law".

The House will not meet on Monday, May 30 through Friday, June 3. See, House calendar. The House will next meet at 2:00 PM on Monday, June 7. See, Republican Whip Notice.

The Senate will not meet on Monday, May 30 through Friday, June 3. See, Senate calendar.

The Supreme Court will next meet on Monday, June 6, 2005. See, Order List [10 pages in PDF] at page 10.

Day one of a two day conference titled "Broadband Policy Summit 2005: A New Leadership Blueprint" hosted by Pike & Fischer. See, notice. Location: Willard InterContinental Hotel.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding two modes of operation -- Galois Counter Mode (GCM) or the Carter-Wegman + Counter (CWC) -- for use with the Advanced Encryption Standard (AES). See, NIST web page regarding modes.

9:00 AM. The Center for Democracy and Technology (CDT) and the Institute for Politics, Democracy and the Internet (IPDI) will host a news conference regarding the Federal Election Commission's (FEC) notice of proposed rulemaking (NPRM) regarding regulation of internet related speech. The speakers will be John Morris (CDT), Carol Darr (IPDI), Mike Krempasky (RedState.Org), and Michael Bassik (MSHC Partners). See, the CDT/IPDI web page regarding this NPRM. There will be a light breakfast. Please RSVP to Danielle Wiblemo at dani at cdt dot org or 202 637-9800. Location: 1634 I St. NW, Suite 1100.

10:00 AM - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council (MSRC) will meet. See, notice [PDF]. Location: Commission Meeting Room, FCC, 445 12th Street, SW.

12:15 - 2:30 PM. The DC Bar Association will host a panel discussion titled "The Nuts And Bolts Of Transfers Of Control At The FCC". The speakers will be Jim Bird (FCC Office of General Counsel), William Dever (FCC Wireline Competition Bureau), Susan O'Connell (FCC International Bureau), Nina Shafran (FCC Media Bureau), and Jeff Tobias (FCC Wireless Telecommunications Bureau). The price to attend ranges from $10-$20. For more information, contact 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day one of a two day conference titled "Broadband Policy Summit 2005: A New Leadership Blueprint" hosted by Pike & Fischer. See, notice. Location: Willard InterContinental Hotel.

TIME? The U.S. District Court (DC) will hold a hearing in US v. Microsoft, D.C. No. 98-1232 (CKK). Location: 333 Constitution Ave., NW.

Deadline to submit comments to the Federal Election Commission's (FEC) in response to its notice of proposed rulemaking (NPRM) regarding regulation of internet related speech.

The Senate will return from its Memorial Day recess. See, Senate calendar.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sandisk v. Memorex, a patent infringement case involving flash memory technology. This is App. Ct. No. 04-1422. It is an appeal from the U.S. District Court (NDCal). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 203.

12:00 NOON. The Federal Communications Bar Association's (FCBA) will hold an event titled "Annual Meeting and Luncheon". The speaker will be Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee. See, registration form [MS Word]. Prices range from $35-$65. Location: Capital Hilton, Congressional Ballroom, 16th and K Streets, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [15 pages in PDF] regarding implementation of the satellite broadcast carriage requirements in the noncontiguous states, as required by Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). The FCC adopted this NPRM at its April 29, 2005 meeting. This NPRM is FCC 05-92 in MB Docket No. 05-181. See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Pages 29252-29253.

8:00 AM. The U.S. Chamber of Commerce will host a breakfast. The speaker will be Rep. Bill Thomas (R-CA), the Chairman of the House Ways & Means Committee. The price to attend ranges from free to $55. See, notice. Location: US Chamber, 1615 H Street, NW.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. The agenda includes updates on encryption controls, AES, and the proposed rule on deemed export related regulatory requirements. See, notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Page 29478. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in International Rectifier Corp. v. Samsung. This is App. Ct. No. 04-1429. This is an appeal from the U.S. District Court (CDCal) in a patent case. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Current Intellectual Property Issues in Europe". The speakers will be Alexander Leisten, Peter Ruess, and Barbara Berschler. The price to attend ranges from $10-$30. For more information, contact 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:30 PM. The Senate Foreign Relations Committee's Subcommittee on East Asian and Pacific Affairs will hold a hearing titled "The Emergence of China Throughout Asia: Security and Economic Consequences for the U.S." See, notice. Location: Room 419, Dirksen Building.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

TENTATIVE. 3:00 - 5:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 1 (Terrestrial and Space Science Services) will meet. See, notice [PDF]. Location: Lockheed Martin, 1550 Crystal Drive, Suite 300, Arlington, VA.

5/24. Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee (SCC), gave a speech to the National Spectrum Managers' Association. He discussed how the Spectrum Relocation Bill was enacted by the Senate in December of 2004, the history of spectrum auctions, forthcoming legislation related to commercial use of spectrum, government use of spectrum, and digital television transition legislation. He also discussed the progress of his closed hearings, which he identifies as "listening sessions". He also again made a plea for greater secrecy and less transparency at both the SCC and the Federal Communications Commission (FCC).

5/21. Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), gave a speech in San Diego, California, titled "The Bush Administration's Commitment to Implementing New Technologies". See, presentation slides [13 pages in PDF].

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