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November 17, 2005, 8:00 AM ET, Alert No. 1,255.
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Tempest in Tunis Subsides

11/16. The International Telecommunications Union (ITU) began its meeting in Tunis, Tunisia, which it describes as the second phase of the World Summit on Information Society (WSIS). See, WSIS web site. The meeting will continue through November 18, 2005.

Michael Gallagher (NTIA) and David Gross (State) held a news conference in Tunis on November 16 at which they announced an agreement that does not provide for United Nations regulation or governance of the internet. See transcript.

Gallagher is head of the Department of Commerce's National Telecommunications and Information Administration (NTIA) and Assistant Secretary of Commerce for Communications and Information. Gross is Deputy Assistant Secretary and U.S. Coordinator for International Communications and Information Policy in the Department of State's Bureau of Economic and Business Affairs.

On July 18, 2005, the United Nation's (UN) Working Group on Internet Governance (WGIG) released a report [24 pages in PDF] titled "Report of the Working Group on Internet Governance". It stated the UN's case for acquiring vast power to regulate various aspects of the operation and use of the internet. See, story titled "UN Seeks Vast Authority to Regulate Operation and Use of the Internet" in TLJ Daily E-Mail Alert No. 1,178, July 20, 2005.

However, the U.S. has opposed such proposals. See, stories titled "NTIA Rebuffs UN Efforts to Gain Control Over Internet Governance" in TLJ Daily E-Mail Alert No. 1,166, July 1, 2005, and "Ambassador Gross Says UN Will Not Be in Charge of the Internet" in TLJ Daily E-Mail Alert No. 1,212, September 13, 2005.

David GrossGross (at right) said at the November 16 news conference that "last night there was an agreement reached on the -- what is referred to as the Tunis Agenda for the Information Society ... It preserves the unique role of the United States Government in assuring the reliability and stability of the Internet. It took no action with regard to existing institutions including ICANN and others. It created no new International Organizations. It created a forum that will take place periodically -- that we think is quite positive for a number of reasons, not the least of which it provides an opportunity for private sector leadership, civil society leadership and engaging in a dialogue on the importance of technology and some of the changes going on and opportunities with regard to things such internet governance."

Gross added that "We are also very pleased that the definition of the internet governance was an appropriate one, one that focuses not so much on some of the technical aspects but rather focuses on the broad range of issues including spam, cyber crime, security related issues and the like. And also very, very importantly, it focuses and refocuses and reaffirms the importance of the free flow of information, reaffirms the importance of technology for facilitating that and for the positive economic, social and political developments that can occur from that.

When asked "Does it change the status quo at all?" and "Is there anything the United States is giving up here?", Gross responded, "Nothing." He added that "There was the creation of a forum that will be an opportunity for civil society and the private sector to engage with governments on an equal footing in ways that are very unusual, particularly in the UN family."

Gallagher stated that "the document is a great success for the private sector. The document is a great success for the future of the Internet. The Internet lives to innovate another day as the result of our combined efforts here."

Also on November 16, 2005, the House unanimously approved HConRes 268 which encourages the administration not cede regulatory authority over the internet to the United Nations. Representatives also praised the agreement reached in Tunis. They also praised Gross and Gallagher for their successful efforts. See, following story in this issue titled "House Approves Resolution Opposing UN Regulation of Internet".

House Approves Resolution Opposing UN Regulation of Internet

11/16. The House approved HConRes 268 by a vote of 423-0. See, Roll Call No. 594. It supports administration efforts in opposition to United Nations regulation of the internet.

This resolution provides that "it is the sense of Congress that (1) it is incumbent upon the United States and other responsible governments to send clear signals to the marketplace that the current structure of oversight and management of the Internet's domain name and addressing service works, and will continue to deliver tangible benefits to Internet users worldwide in the future; and (2) therefore the authoritative root zone server should remain physically located in the United States and the Secretary of Commerce should maintain oversight of ICANN so that ICANN can continue to manage the day-to-day operation of the Internet's domain name and addressing system well, remain responsive to all Internet stakeholders worldwide, and otherwise fulfill its core technical mission."

Rep. John DoolittleRep. John Doolittle (R-CA) (at left) introduced this resolution on October 28, 2005. Rep. Doolittle, along with Rep. Rick Boucher (D-VA) and Rep. Bob Goodlatte (R-VA) held a news conference regarding internet governance, the conference in Tunis, and HConRes 268, on Wednesday morning, November 16. John Berthoud (President of National Taxpayers Union) and Steve DelBianco (Association for Competitive Technology) also spoke.

Rep. Doolittle stated that if the United Nations were to obtain regulatory authority over the internet, repressive and undemocratic nations, such as the People's Republic of China, Saudi Arabia, and Libya would seek to limit access to the internet and domain names for the purpose of suppressing free expression. He said that China has already created "the Great FireWall of China", and that China and Saudi Arabia are prosecuting people for expressing opinions online.

Rep. Boucher said that the Department of Commerce (DOC), which includes the National Telecommunications and Information Administration (NTIA), has been a "good steward", that "no one has demonstrated any problems", and that its administration has been "efficient and even handed".

One reporter asked whether the DOC had interjected politics into the Internet Corporation for Assigned Names and Numbers' (ICANN) consideration of a .xxx top level domain. Rep. Boucher said that the DOC had merely submitted a comment to the ICANN, as may any other nation or person. Rep. Goodlatte added that that issue "is a red herring".

Rep. Boucher was also asked about renewal of the current Memorandum of Understanding (MOU) between the DOC and the ICANN. He argued that "when this memorandum expires, it ought to be renewed".

Rep. Goodlatte discussed the agreement reached in Tunis on November 16. He said that "this appears to be a big win for the internet" and for the free flow of information. However, he cautioned that "certain countries will continue to push for more control over the internet".

DelBianco said that "network security and stability" is vital for continued innovation and investment. He said that "the current system has obviously not been a hindrance to growth and innovation on the internet. However, without continued confidence in the security and stability of the internet, usage of and investment in the network will be threatened."

DelBianco also discussed the "tempest in Tunis". He praised the agreement to leave technical management in the hands of the ICANN.

Berthoud focused on another argument against allowing the United Nations to regulate the internet -- taxes. He said that the establishment of an international internet governance body could result in taxation of use of the internet, and that this tax would fall heavily on the U.S.

House Approves Resolution on Russia's Lack of IPR Protection

11/16. The House approved HConRes 230 by a vote of 421-2. See, Roll Call No. 593. This resolution expresses the sense of the House that Russia must protect intellectual property rights, and addresses Russia's efforts to join the World Trade Organization (WTO).

The resolution states that "accession to the World Trade Organization (WTO) represents an agreement to conform one's practices to the rule of law, and to international standards in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)", that "Russia's regime to protect intellectual property rights does not conform with TRIPS standards", and that "the United States can ill afford deterioration of the world trading system by permitting the entry of a country into the WTO that has not demonstrated its willingness and ability to conform its practices to the requirements of the TRIPS".

The resolution concludes that "it is the sense of the Congress that (1) the Russian Federation should provide adequate and effective protection of intellectual property rights, or it risks losing its eligibility to participate in the Generalized System of Preferences (GSP) program; and (2) as part of its effort to accede to the World Trade Organization, the Russian Federation must ensure that intellectual property is securely protected in law and in practice, by demonstrating that the country is willing and able to meet its international obligations in this respect."

This resolution was introduced by Rep. Darrell Issa (R-CA). Rep. Walter Jones (NC) and Rep. Ron Paul (R-TX) cast the two no votes.

Bush Discusses Freedom and Free Trade in Kyoto

11/16. President Bush gave a speech in Kyoto, Japan. He focused on "freedom"; he used the word over fifty times. He stated that "freedom is the surest path to prosperity and stability".

He also discussed the relationship between free trade and other aspects of freedom. He said that "Our best opportunity to spread the freedom that comes from economic prosperity is through free and fair trade. The Doha Round of negotiations in the World Trade Organization gives us a chance to open up markets for goods, and services, and farm products all across the globe. Under Doha, every nation will gain -- and the developing world stands to gain the most."

Bush continued that "the greatest obstacle to a successful Doha Round is the reluctance in many parts of the developed world to dismantle the tariffs, and barriers, and trade-distorting subsidies that isolate the world's poor from the great opportunities of this century."

He reviewed his proposal to eliminate tariffs over 15 years. On September 14, 2005, Bush gave a speech at the United Nations, in New York City, in which he proposed the elimination of "all tariffs, subsidies and other barriers to free flow of goods and services".

He then said that "Pacific Rim leaders who are concerned about the harmful effects of high tariffs and farm subsidies need to come together to move the Doha Round forward on agriculture -- as well as on services and manufactured goods. And this year's Summit in Korea gives APEC a chance to take a leadership role before next month's WTO meeting in Hong Kong."

The World Trade Organization (WTO) will hold its Sixth WTO Ministerial Conference in Hong Kong, China, on December 13-18, 2005. See, WTO notice. The Asia-Pacific Economic Cooperation (APEC) is currently meeting in Busan, Korea. See, APEC 2005 Korea web site.

He added that "APEC is the premier forum in the Asia-Pacific region for addressing economic growth, cooperation, trade, and investment. Its 21 member economies account for nearly half of all world trade. By using its influence to push for an ambitious result in the Doha Round, APEC can help create a world trading system that is freer and fairer -- and helps spread prosperity and opportunity throughout the Asia-Pacific region."

Portman Discusses APEC and Doha

11/16. U.S. Trade Representative (USTR) Rob Portman held a news conference in Busan, South Korea. See, transcript [6 pages in PDF]. He is there to attend the Asia-Pacific Economic Cooperation (APEC) meeting. See also, APEC 2005 Korea web site.

He stated that "We've had good discussions here on a number of topics from intellectual property to the Bogor goals to the trade facilitation issues and FTAs. We also had the chance to talk about the Doha round."

He added that "As we approach the Hong Kong Ministerial, the APEC countries will be recommending to our leaders who are going to be starting tomorrow and the next day, the strongest statement possible to help advance the Doha round with the recognition that more needs to be done in the area of agriculture, particularly market access in agriculture to unblock the talks."

A reporter from Korea asked Portman when the U.S. and Korea "plan to launch FTA and bilateral investment of treaties" talks. Portman responded that "we have a very strong economic relationship with Korea", but that "we have set no date for any kind of new agreement".

Federal Circuit Denies Rehearing in Case Involving Prosecution Laches

11/16. The U.S. Court of Appeals (FedCir) issued an order [5 pages in PDF] in Symbol Technologies v. Lemelson Medical, a patent case involving the doctrine of laches. The Court of Appeals denied petitions for rehearing and en banc review, but amended the September 9, 2005, opinion [16 pages in PDF] of the three judge panel. The September 9 opinion affirmed the District Court's judgment that the asserted patent claims are invalid for lack of enablement, unenforceable under the doctrine of prosecution laches, and not infringed.

The just issued order disposes of a petition for a panel rehearing, and a petition for rehearing en banc. The order states that "The petition for panel rehearing is granted for the limited purpose of amending the opinion issued on September 9, 2005", and "The petition for rehearing en banc is denied".

The order sets forth the amendments to the September 9 opinion of the three judge panel. Among other things, it adds that "we hold that all of the claims of the 14 asserted patents are unenforceable under the doctrine of prosecution laches". The District Court had not yet applied the doctrine of laches to bar all claims.

This case pertains to Lemelson's bar code technology patents. Intel, which is a defendant in other litigation asserting these patents, has participated as an amicus curiae. It filed a amicus brief [17 pages in PDF] on the petitions for panel rehearing and en banc review.

Intel and other technology companies have argued that unreasonable delay in the prosecution of a patent leaves these companies unaware of hidden potential claims, and that the doctrine of laches properly protects such companies from these submarine patents.

See also, web page containing hyperlinks to pleadings, transcripts, orders, and opinions in this case. See also, story titled "Split Federal Circuit Allows Prosecution Laches Claim to Proceed" in TLJ Daily E-Mail Alert No. 355, January 28, 2002.

Washington Tech Calendar
New items are highlighted in red.
Thursday, November 17

The House will meet at 10:00 AM for legislative business. The House may take up motions to appoint conferees, and conference reports. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business. It will then begin consideration of S 2020, the tax relief reconciliation bill.

9:00 AM - 3:00 PM. Day four of a four day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See, notice in the Federal Register, October 25, 2005, Vol. 70, No. 205, at Page 61606. Location: NIST, Administration Building, Room A1038, Gaithersburg, MD.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of several judicial nominees, including Joseph Bianco (to be a Judge of the U.S. District Court for the Eastern District of New York, Timothy Burgess (District of Alaska), Gregory Van Tatenhove (Eastern District of Kentucky), and Eric Vitaliano (Eastern District of New York). The agenda also includes consideration of Emilio Gonzalez (Director of the DHS's Bureau of Citizenship and Immigration Services), Catherine Hanaway (U.S. Attorney for the Eastern District of Missouri), Carol Dinkins (Chairman of the Privacy and Civil Liberties Oversight Board), and Alan Charles Raul (Vice Chairman of the Privacy and Civil Liberties Oversight Board. The agenda also includes consideration of S 1789, the "Personal Data Privacy and Security Act of 2005" S 751, the "Notification of Risk to Personal Data Act". The agenda also includes three bills pertaining to trademarks and counterfeiting:  and HR 683, the "Trademark Dilution Revision Act of 2005". The SJC frequently cancels of postpones 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.

9:30 AM. The Antitrust Modernization Commission (AMC) will meet. The topic will be "Merger Enforcement". The morning panel will be from 9:30 to 11:30 AM. The afternoon panel will be from 12:45 to 2:45 PM. See, AMC notice and notice in the Federal Register, October 21, 2005, Vol. 70, No. 203, at Page 61247. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

10:00 AM - 12:00 NOON. The House Science Committee will hold a hearing titled "Environmental and Safety Impacts of Nanotechnology: What Research is Needed?" The witnesses will be Clayton Teague (National Nanotechnology Coordination Office), Richard Denison (Environmental Defense), Krishna Doraiswamy (DuPont Central Research and Development), Matthew Nordan (Lux Research Inc.), and David Rejeski (Smithsonian Institution). Press contact: Joe Pouliot, Deputy Communications Director, at Joe dot Pouliot at mail dot house dot gov or 202 225-6371. For more information, contact Marty Spitzer (Republican staff) at 202 225-7858, or Jim Wilson or Christal Sheppard (Democratic staff) at 202 225-6375. Location: Room 2318, Rayburn Building.

10:00 AM. The Heritage Foundation will host a panel discussion titled "Let the UN Govern the Internet?". The speakers will be Sen. Norm Coleman (R-MN), Rep. John Doolittle (R-CA), Adam Thierer (Progress and Freedom Foundation), John Tkacik (Asian Studies Center of the Heritage Foundation), and James Gattuso (Heritage Foundation). See, notice. Location: Allison Auditorium, Heritage Foundation, 214 Massachusetts Ave., NE.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for meetings of the ITU-D Telecommunication Development Advisory Group (TDAG). See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Page 61876. Location: DOS, Harry Truman Building, Room 2533A.

10:30 AM. The Senate Intelligence Committee will hold a closed hearing on the nomination of Dale Meyerrose to be the Chief Information Officer (CIO) of the Office of the Director of National Intelligence. Location: Room 219, Hart Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Remedies In Trademark Infringement And Unfair Competition Cases". The speakers will include John Dabney (McDermott Will & Emery) and Anita Polott (Morgan Lewis). The price to attend ranges from $20-$40. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

RESCHEDULED FROM NOVEMBER 15, AND LOCATION CHANGE. 12:00 NOON. Rep. Lee Terry (R-NE) and Rep. Rick Boucher (D-VA) will hold a briefing on the discussion draft of HR __, the "Universal Service Reform Act of 2005". For more information, contact Amanda Potter (Boucher) at 202 225-3861. Location: Room 2218, Rayburn Building.

2:30 PM. The Senate Commerce Committee will hold a business meeting. The agenda includes consideration of several bills, including S 687, the "Software Principles Yielding Better Levels of Consumer Knowledge Act". This bill, which is also known as the SPY BLOCK Act, pertains to spyware and other matters. The Committee will also consider the nominations of William Kovacic and Thomas Rosch to be a members of the Federal Trade Commission (FTC). See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 216, Hart Building.

Friday, November 18

The House may meet at 9:00 AM to take up motions to appoint conferees, and to approve conference reports. See, Republican Whip Notice.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice and agenda [PDF] of November 14, 2005, and notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Page 61823. Location: FCC, 445 12th Street, SW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Future of Science". The witnesses will be Peter Agre (Duke University), Eric Cornell (National Institute of Standards and Technology), James Heath (California Institute of Technology), and Samuel Ting (Massachusetts Institute of Technology). The SCC stated in a release that these witnesses will "address concerns that the U.S. is slipping in research, technology innovation, and education". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 562, Dirksen Building.

10:00 - 11:30 AM. The Center for Democracy and Technology (CDT) will hold a briefing on the status of data security bills pending in the Congress. A late breakfast will be served. The speakers will be Ari Schwartz, David Sohn and Nancy Libin, all of the CDT. RSVP to David McGuire at dmcguire at cdt dot org or 202 637-9800 x106. Location: CDT, conference room, 11th floor, 1634 I St., NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Gutenberg meets Google: The Debate About Google Print". The speakers will be Alan Davidson (Google), Allan Adler (Association of American Publishers), Keith Kupferschmid (Software & Information Industry Association), and Solveig Singleton (PFF). See, notice and registration page. Location: Room B-369, Rayburn Building, Capitol Hill.

Saturday, November 19

? The House may meet to take up motions to appoint conferees, and to approve conference reports. See, Republican Whip Notice.

Monday, November 21

2:00 PM. The Information Technology Association of America (ITAA) will host a webcast event titled "China Transactions: The IP Paradigm". The speakers will be Chris Cooper & Ken DeWoskin of Price Waterhouse Coopers. See, notice. For more information, contact Mark Uncapher at muncapher at itaa dot org.

Deadline to submit nominations to the Department of Commerce's (DOC) Technology Administration for its 2006 Commerce Science and Technology Fellowship (ComSci) Program. Only full time career federal employees in a professional or management series at the GS/GM-13 level or above are eligible. See, notice.

Tuesday, November 22

1:00 - 2:00 PM. The National Science Foundation (NSF) National Science Board will meet. The Board will discuss a report [12 pages in PDF] titled "National Science Board 2020 Vision for the National Science Foundation". See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69604 - 69605. Location: NSF, Public Meeting Room 120, 4201 Wilson Boulevard, Arlington, VA.

Wednesday, November 23

Deadline to submit comments to the Internal Revenue Service (IRS) regarding its notice of proposed rulemaking (NPRM) regarding the source of income derived from international communications activity. See, notice in the Federal Register, September 19, 2005, Vol. 70, No. 180, at Pages 54859 - 54878.

Thursday, November 24

Thanksgiving Day.

There will be no issue of the TLJ Daily E-Mail Alert.

If the House has not already adjourned, the House will not meet from Thursday, November 24, through Friday, December 2.

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

People and Appointments

11/16. On Tuesday, November 15, 2005, the Senate Banking Committee (SBC) held a hearing on the nomination of Ben Bernanke to be Chairman of the Federal Reserve Board. He stated in his prepared testimony that "I will make continuity with the policies and policy strategies of the Greenspan Fed a top priority." On Wednesday, November 16, the SBC held a business meeting at which it approved the nomination. See also, story titled "Bush Picks Bernanke to Replace Greenspan" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005.

11/16. Barry Nigro, Deputy Director of the Federal Trade Commission's (FTC) Bureau of Competition, will leave the FTC, effective November 18, 2005. He will return to the Washington DC office of the law firm of Willkie Farr & Gallagher. See, FTC release.

More News

11/16. The Senate approved the conference report on HR 2862, the "Departments of Commerce and Justice, Science, and Related Agencies Appropriations Act, 2006", by a vote of 94-5. See, Senate Roll Call No. 329. The House approved this conference report on November 9, 2005, by a vote of 397-19. See, House Roll Call No. 581.

11/16. The House approved HR 1036, an untitled bill that makes technical corrections and changes to provisions of the Copyright Act regarding copyright royalty judges, and proceedings before copyright royalty judges. The bill is sponsored by Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA). The Senate has yet to approve this bill.

11/16. The U.S. Court of Appeals (8thCir) issued its opinion [6 pages in PDF] in Allsup v. Advantage 2000 Consultants, a case involving a claim of false advertising in violation of 15 U.S.C. 1125(a)(1)(B). The Court of Appeals affirmed the District Court's grant of summary judgment to the defendant. The District Court also granted summary judgment on a claim of reverse passing off in violation of 15 U.S.C. 1125(a)(1)(A). The plaintiff did not appeal on that issue. See, 15 U.S.C. 1125. This case is Allsup, Inc. v. Advantage 2000 Consultants, Inc., et al., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 04-3376, an appeal from the U.S. District Court for the Eastern District of Missouri, Judge Jean Hamilton presiding.

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