|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.
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,
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.
(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
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
Rep. 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
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
One reporter asked whether the DOC had interjected politics into the
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
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
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
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
11/16. President Bush gave a
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
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
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
11/16. U.S. Trade Representative (USTR)
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.
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
The Senate will meet at 9:30 AM for morning
business. It will then begin consideration of S 2020, the tax relief
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.
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
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
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 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),
(Asian Studies Center of the Heritage Foundation), and
(Heritage Foundation). See,
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,
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
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,
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
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),
(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).
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,
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
[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
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
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
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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