6/27. The Appellate Body of the World Trade Organization (WTO) issued its report [101 pages in PDF] titled "United States -- Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea". This report overturns key parts of the Dispute Settlement Body's (DSB) February 21, 2005 report.

Micron Technology, a company based in the state of Idaho that makes semiconductors, including DRAMs, has long complained to U.S. executive branch agencies, including the Department of Commerce (DOC) and the U.S. International Trade Commission (USITC), and to the Congress, regarding DRAM related subsidies made by the Korean government.

The U.S. imposed countervailing duties on DRAM semiconductors made in Korea. Korea then complained to the WTO. On February 21, 2005, a DSB of the WTO issued a report [121 pages in PDF]. It concluded that the U.S. countervailing duties are in violation of the Agreement on Subsidies and Countervailing Measures (SCM).

The U.S. appealed. And now, the Appellate Body has reversed the DSB's findings that U.S. countervailing duties violate Sections 1 and 2 of the SCM.

U.S. Trade Representative Robert Portman stated in a release that "This is an important turnaround for U.S. high-tech manufacturers, as well as the international trading system ... The international trading system is built on fairness, and the Korean government unfairly subsidized a Korean company. The Appellate Body report will help to ensure that governments play by the rules. Governments shouldn't be able to give unfair subsidies by pressuring banks to provide non-commercial loans. This is another example of how the Administration, day-in and day-out, is working aggressively to use U.S. trade laws to level the playing field and, when needed, to defend our actions at the WTO. We believe today's decision will strengthen the ability of U.S. companies to compete against Korean firms on an equal footing in Korea and around the world".

The USTR release offers this summary of the Appellate Body report. "The Appellate Body agreed with the United States that the WTO panel committed multiple errors in reviewing the U.S. determination that the Government of Korea subsidized Hynix by pressuring private creditors to provide financial assistance to the company. These panel errors included a failure to examine the record evidence in its totality; a refusal to consider evidence that was on the record of the underlying investigation and that was cited by the United States; and a key finding by the panel that was not supported by evidence on the record of the underlying investigation. Cumulatively, these errors amounted to a failure on the part of the panel to apply the correct standard of review. According to the Appellate Body, "the Panel essentially ‘second-guessed’ the investigating authority’s analysis of the evidence and thus overstepped the bounds of its review."

See also, Micron release praising the Appellate Body report, and the elected and executive branch officials who pressed this matter.

See also, story titled "WTO Panel Concludes US DRAM Countervailing Duties Order Violates SCM" in TLJ Daily E-Mail Alert No. 1,080, February 22, 2005.

6/27. The Government Accountability Office (GAO) released a report [74 pages in PDF] titled "File Sharing Programs: The Use of Peer-to-Peer Networks to Access Pormography". Most of this report consists of briefing slides.

The report found that "Pormographic images were easily shared and accessed on the three P2P programs we tested -- Warez, Kazaa, and Morpheus. In addition, juveniles continue to be at risk of inadvertent exposure to pormographic images when using P2P programs. For example, when searching Kazaa using a word known to be associated with pormography, 65 percent of the 31 images downloaded were adult pormography, 19 percent were nonpormographic, 13 percent were ..." (TLJ intentionally misspells words that cause the e-mail filters of some subscribers to block delivery of the TLJ Daily E-Mail Alert.)

The report also found that "Two of the three P2P programs -- Kazaa and Morpheus -- provide filters, but the effectiveness of the filters varies. Warez, however, does not provide a filter. Kazaa filters words found in titles or metadata (data associated with the files that contains descriptive information). Kazaa’s filter was effective in blocking pormographic and erotic images in our searches. Morpheus requires the user to enter the specific words that the user would like to filter. Morpheus's filter was largely ineffective in blocking pormographic content associated with the words entered into the filter." (Parentheses in original.)

The report was requested by Rep. Tom Davis (R-VA), Rep. Mark Souder (R-IN), Rep. Chip Pickering (R-MS), Rep. John Shadegg (R-AZ), and Rep. Joseph Pitts (R-PA).

6/27. The Government Accountability Office (GAO) released a report [78 pages in PDF] titled "Critical Infrastructure Protection: Department of Homeland Security Faces Challenges in Fulfilling Cybersecurity Responsibilities".

The report finds that while the Department of Homeland Security (DHS) "has initiated multiple efforts, it has not fully addressed any of the 13 key cybersecurity-related responsibilities that we identified in federal law and policy, and it has much work ahead in order to be able to fully address them."

For example, the report states that the "DHS has not yet developed national threat and vulnerability assessments or developed and exercised government and government/industry contingency recovery plans for cybersecurity, including a plan for recovering key Internet functions."

The report also finds that the "DHS continues to have difficulties in developing partnerships -- as called for in federal policy -- with other federal agencies, state and local governments, and the private sector."

This report also concludes that the "DHS faces a number of challenges that have impeded its ability to fulfill its cyber CIP responsibilities. Key challenges include achieving organizational stability; gaining organizational authority; overcoming hiring and contracting issues; increasing awareness about cybersecurity roles and capabilities; establishing effective partnerships with stakeholders (other federal agencies, state and local governments, and the private sector); achieving two-way information sharing with these stakeholders; and demonstrating the value DHS can provide. In its strategic plan for cybersecurity, DHS has identified steps that can begin to address these challenges. However, until it effectively confronts and resolves these underlying challenges, DHS will have difficulty achieving significant results in strengthening the cybersecurity of our nation’s critical infrastructures, and our nation will lack the strong cybersecurity focal point envisioned in federal law and policy." (Parentheses in original.)

6/27. The U.S. Supreme Court denied certiorari in McFarling v. Monsanto. See, Order List [11 pages in PDF], at page 4.

This case involves the relation between antitrust and patent law. Last week, on June 20, the Supreme Court granted certiorari in Illinois Tool Works v. Independent Ink, another  patent tying antitrust case. See, story titled "Supreme Court Grants Certiorari in Patent Tying Antitrust Case" in TLJ Daily E-Mail Alert No. 1,158, June 21, 2005.

The Department of Justice's (DOJ) Office of the Solicitor General (OSG) wrote in its brief that the two issues in this case are "1. Whether a licensee may validly assert the defense of patent misuse in an action for breach of a patent-licensing agreement when the license allowed him to plant seeds embodying patented technology only for the purpose of growing crops for resale as a commodity, and not to save any new seeds (also embodying the patented technology) for replanting", and "2. Whether a patentee engages in tying, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1, when it allows the licensee to plant seeds embodying patented technology only for the purpose of growing crops for resale as a commodity, and not to save any new seeds (also embodying the patented technology) for replanting."

This case is Homan McFarling v. Monsanto Company, Sup. Ct. No. 04-31, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit.

6/27. The U.S. Supreme Court denied certiorari in WH-T.V. Broadcasting v. Zenith. See, Order List [11 pages in PDF], at page 4.

This is a contract dispute involving the sale of television set top boxes, the availability of consequential damages for breach of contract, and the doctrine of Hadley v. Baxendale. This denial of certiorari lets stand the judgment of the U.S. Court of Appeals (7thCir). See, opinion [PDF] of January 20, 2005. The Appeals Court affirmed the District Court's summary judgment for Zenith.

See also, story titled "7th Circuit Rules in Zenith v. WH-TV" in TLJ Daily E-Mail Alert No. 1,060, January 21, 2005.

This case is WH-T.V.  Broadcasting Corporation v. Zenith Electronics Corporation, Sup. Ct. No. 04-1514, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit. The Court of Appeals case is Nos. 04-1635 & 04-1790.

6/27. The Supreme Court denied certiorari in Hewlett-Packard v. Donald Jebian, No. 03-1202, an Employee Retirement Income Security Act (ERISA) case. See, Order List [11 pages in PDF], at page 4. See also, brief of the Department of Justice's (DOJ) Office of the Solicitor General (OSG) urging the Court to deny certiorari.

6/27. The Supreme Court denied certiorari in Rates Technology, Inc. v. Nortel Networks, No. 04-1559, a patent infringement case involving the issue of personal jurisdiction. See, Order List [11 pages in PDF], at page 5. See also, opinion [14 pages in PDF] of the U.S. Court of Appeals (FedCir).

6/28. President Bush nominated Josette Shiner to be Under Secretary of State (Economic, Business and Agricultural Affairs). She is currently Deputy U.S. Trade Representative. She was previously P/CEO of Empower America, and before that, Managing Editor of The Washington Times. See, White House release and release.

6/28. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (CIIP), approved by voice vote HR 2791, the "Patent and Trademark Fee Modernization Act of 2005". This bill is almost identical to a bill that the House, but not the Senate, approved last year. It contains increases in user fees that implement the U.S. Patent and Trademark Office's (USPTO) 21st Century Strategic Plan. It provides for U.S. outsourcing of patent searches. It also provides for an end to the diversion of user fees to subsidize other government programs. See also, story titled "CIIP Subcommittee to Mark Up USPTO Fee Bill" in TLJ Daily E-Mail Alert No. 1,162, June 27, 2005.

6/28. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (CIIP), approved by voice vote HR 2955, the "Intellectual Property Jurisdiction Clarification Act of 2005". This bill is a legislative response to the opinion of the Supreme Court in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002). See, story titled "Supreme Court Rules on Appellate Jurisdiction of Federal Circuit" in TLJ Daily E-Mail Alert No. 443, June 4, 2002. Basically, in the Holmes case the Supreme Court held that the Federal Circuit's appellate jurisdiction cannot be based solely upon a patent counterclaim. This bill, for example, would amend 28 U.S.C. § 1338 to clarify that when a complaint is filed in state court that does not plead a cause of action under patent or copyright law, and then a counterclaim is plead under patent or copyright law, there is no jurisdiction in the state court over the patent or copyright claim. See also, story titled "CIIP Subcommittee to Mark Up Intellectual Property Jurisdiction Clarification Act" in TLJ Daily E-Mail Alert No. 1,162, June 27, 2005.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business. It will then resume consideration of HR 2361, the Interior appropriations bill.

9:30 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on vulnerabilities in the U.S. passport system. See, notice. Location: Room 562, Dirsksen Building.

9:30 AM. Day two of a two day hearing of the Federal Election Commission (FEC) regarding its proposed rules regarding regulation of speech on the internet. See, notice and notice in the Federal Register, Vol. 70, No. 63 April 4, 2005, at pages 16967 - 16979. See also, list of witnesses, with links to written comments. Location: FEC, 999 E Street, NW.

CANCELLED. 10:00 AM. The Senate Commerce Committee (SCC) may hold a hearing on "Spectrum/DTV". Press contact: Melanie Alvord (Stevens) at 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.

10:00 AM. The House Science Committee's Subcommittee on Research will hold a hearing titled "Nanotechnology: Where Does the U.S. Stand?". The witnesses will be Floyd Kvamme (Co-Chair of the President's Council of Advisors on Science and Technology), Jim O'Connor (Motorola), Sean Murdock (NanoBusiness Alliance), and Matthew Nordan (Lux Research). Press contact: Joe Pouliot at 225-0581 or joe dot pouliot at mail dot house dot gov. Location: Room 2318, Rayburn Building.

10:00 AM. The House Homeland Security Committee's Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity will hold a hearing titled "Improving Pre-Screening of Aviation Passengers against Terrorist and Other Watch Lists". Location: undisclosed.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Analyze This: Financial Analysts Explain the Impact of Telecom Regulation on Investors". The speakers will be Rudolfo Baca (Precursor Group), Paul Glenchur (Stanford Washington Research Group), and Susan Lynner (Prudential Financial). No RSVP necessary. For more information, contact Debrea Terwilliger at 202 383-3349 or debrea dot terwilliger at wbklaw dot com, or Jason Friedrich at 202 354-1340 or jason dot friedrich at dbr dot com. Location: Willkie Farr & Gallagher, 1875 K Street, NW, 2nd Floor.

2:00 PM. The House Government Reform Committee will hold a hearing titled "The Next Generation Internet and the Transition to IPv6". The witnesses will be Karen Evans (Administrator for Electronic Government and Information Technology, Office of Management and Budget), David Powner (Director of Information Technology Management Issues, Government Accountability Office), Keith Rhodes (Chief Technologist and Director, Center for Technology and Engineering, Government Accountability Office), George Wauer (Department of Defense), John Curran (Chairman of the American Registry for Internet Numbers), Jawad Khaki (Microsoft), Stan Barber (Verio), and Alex Lightman (Charmed Technology Inc.). Press contact: Robert White or Drew Crockett at 202 224-5074. Location: Room 2154, Rayburn Building.

2:00 PM. The House Armed Services Committee will hold a hearing titled "Small Business Technologies". Some of the witnesses will address electronics and information technologies. Location: Room 2118, Rayburn Building.

Day two of a four day conference of the Wireless Communications Association International (WCA) titled "WCA 2005". See, notice. Location: Marriott Wardman Park Hotel.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

8:00 AM. The Discovery Institute will host a "private breakfast" for "respected members of the media". George Gilder will discuss telecom reform. RSVP to 202 682-1201 or lgage at discovery dot org. Location: The University Club, 1135 16th Street, NW.

POSTPONED. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) will meet to mark up HR 2795, the "Patent Act of 2005". Rep. Lamar Smith (R-TX), the Chairman of the CIIP Subcommittee, announced this meeting at a hearing on June 9, 2005. See, story titled "House CIIP Subcommittee Holds Hearing on Patent Bill" in TLJ Daily E-Mail Alert No. 1,151, June 10, 2005. Location: Room 2141, Rayburn Building.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels meetings without notice. 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.

10:00 AM. The Senate Commerce Committee's Subcommittee on Technology, Innovation, and Competitiveness will hold a hearing on health information technology. The witnesses will be David Brailer (Department of Health and Human Services), Carolyn Clancy (DHHS), Hratch Semerjian (National Institute of Standards and Technology), Jonathan Perlin (Department of Veterans Affairs), Susan Bostrom (Cisco Systems), John Glaser (Partners HealthCare System), Peter Basch (MedStar Health), Pamela Pure (McKesson Corporation), and Karen Ignagni (America’s Health Insurance Plans). See, notice. The hearing will be webcast. Press contact: Melanie Alvord (Stevens) at 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 - 12:00 PM. The National Science Foundation's (NSF) National Science Board's Committee on Programs and Plans will meet. The agenda includes "Review of NSF draft Cyber Infrastructure Vision document" and "Next steps for developing a Board-approved High Performance Computing Strategy for NSF". See, notice in the Federal Register: June 22, 2005, Vol. 70, No. 119, at Page 36213. Location: NSF, Public Meeting Room 130, 4201 Wilson Boulevard, Arlington, VA.

12:00 NOON - 1:30 PM. The Advisory Committee to the Congressional Internet Caucus will host a panel discussion titled "The U.S. Patriot Act and E-Surveillance". The speakers will be William Moschella (Department of Justice), James Dempsey (Center for Democracy and Technology), and Emily Sheketoff, (American Library Association). See, notice. Lunch will be served. RSVP to rsvp@netcaucus.org or 202 638-4370. Location: Room HC-5, Capitol Building.

Day three of a four day conference of the Wireless Communications Association International (WCA) titled "WCA 2005". See, notice. Location: Marriott Wardman Park Hotel.

Deadline to submit initial comments to the Copyright Office's Copyright Royalty Board regarding its interim regulations governing the organization, administration, and procedures of the Copyright Royalty Board. See, notice in the Federal Register, May 31, 2005, Vol. 70, No. 103, at Pages 30901 - 30916.

The House may meet at 9:00 AM for morning hour. See, Republican Whip Notice.

Day four of a four day conference of the Wireless Communications Association International (WCA) titled "WCA 2005". See, notice. Location: Marriott Wardman Park Hotel.

Effective date of the final rule of the Department of the Treasury's (DOT) Office of the Comptroller of the Currency (OCC), the DOT's Office of Thrift Supervision (OTS), the Federal Reserve System, and the Federal Deposit Insurance Corporation (FDIC) implementing § 216 of the Fair and Accurate Credit Transactions Act of 2003, which is also known as the FACT Act. The FACT Act was HR 2622 in the 108th Congress. It is now Public Law No. No. 108-159. § 216 of the FACT Act adds a new § 628 to the Fair Credit Reporting Act (FCRA) that pertains to protecting consumers against the risks associated with unauthorized access to information about the consumer contained in a consumer report, such as fraud and related crimes, including identity theft. The FCRA is codified at 15 U.S.C. § 1681 et seq. The new section is codified at 15 U.S.C. § 1681w. See, notice in the Federal Register, December 28, 2004,  Vol. 69, No. 248, at Pages 77610 - 77621. See also, story titled "Financial Regulators Publish Notice of Final Rule Implementing Section 216 of FACT Act" in TLJ Daily E-Mail Alert No. 1046, December 29, 2004.

Deadline to submit comments to the Antitrust Modernization Commission (AMC) in response to the AMC's request for public comments regarding the Robinson-Patman Act. See, notice in the Federal Register: May 19, 2005, Vol. 70, No. 96, at Pages 28902 - 28907.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its public notice regarding refreshing the record on issues raised in the Further Notice of Proposed Rulemaking (FNPRM) related to carrier identification code (CIC) conservation and the definition of "entity" as found in section 1.3 of the CIC Assignment Guidelines. This public notice is DA 05-1154 in CC Docket No. 92-237; it was released on April 26, 2005. See, notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31405 - 31406.

Deadline for states and telecommunications relay services (TRS) providers to file with the Federal Communications Commission (FCC) their annual consumer complaint log summaries. See, FCC notice.

Independence Day.

The House will not meet on Monday, July 4 through Friday, July 8. See, House calendar.

The Senate will not meet on Monday, July 4 through Friday, July 8. See, Senate calendar.

The Federal Communications Commission (FCC) and other federal offices will be closed for Independence Day. See, Office of Personnel Management's (OPM) list of federal holidays.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to its Public Notice [PDF] regarding the United Telecom Council (UTC) request to be the Access Broadband over Power Line (Access BPL) database manager. This is DA 05-1637, dated June 9, 2005, in ET Docket No. 04-37.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sicom Systems v. Agilent Technologies, a case regarding standing to sue for patent infringement. See, October 5, 2004 Memorandum Opinion [PDF] of the U.S. District Court (Del). This is D.C. No. 03-1171-JJF, and App. Ct. No. 05-1066. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 201.

12:00 NOON - 2:00 PM. The DC Bar Association will host a program titled "File Sharing and Copyright Infringement after MGM Studios v. Grokster". 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.

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