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January 10, 2006, 8:00 AM ET, Alert No. 1,286.
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Supreme Court Denies Cert in Texas Spam Blocking Case

1/9. The Supreme Court denied certiorari in White Buffalo Ventures v. University of Texas at Austin. See, Order List [32 pages in PDF] at page 4.

This lets stand the August 2, 2005, opinion [13 pages in PDF] of the U.S. Court of Appeals (5thCir). See, story titled "Court Holds Texas's Blocking of Legal E-Mail Is Neither Preempted by CAN-SPAM Act, Nor In Violation of 1st Amendment" in TLJ Daily E-Mail Alert No. 1,187, August 3, 2005.

The University of Texas at Austin (UTAustin) is a political subdivision of the state of Texas. White Buffalo Ventures (WBV) sends bulk unsolicited commercial e-mail to UTAustin e-mail addresses. However, while it is a spammer, it complies with the federal CANSPAM Act. The UTAustin blocked e-mail from WBV pursuant to its e-mail policy.

The CAN-SPAM Act, the full title of which is the "Controlling the Assault of Non-Solicited Pormography and Marketings Act of 2003", was S 877 in the 108th Congress. It is now Public Law No. 108-187. It is codified at 15 U.S.C. 7701-7713.

WBV argued below that the CANSPAM Act preempts the anti-spam component of UTAustin's e-mail policy. The Court of Appeals rejected this argument. It wrote that the statute is not clear on preemption. It concluded that since there is a presumption against preemption of state law, there is no preemption in this case.

WBV also argued below that the UTAustin's e-mail policy violates its First Amendment freedom of speech rights. The Court of Appeals rejected this argument.

This case is White Buffalo Ventures, LLC v. University of Texas at Austin, Sup. Ct. No. 05-520. This is a petition for writ of certiorari to the U.S. Court of Appeals for the Fifth Circuit, App. Ct. No. m 04-50362. The Court of Appeals heard an appeal from the U.S. District Court for the Western District of Texas.

Supreme Court Denies Certiorari in EC v. RJR Nabisco

1/9. The Supreme Court denied certiorari in European Community v. RJR Nabisco. See, Order List [32 pages in PDF] at page 5. This lets stand the September 13, 2005, opinion [12 pages in PDF] of the U.S. Court of Appeals (2ndCir).

While this is a case regarding use of the U.S. RICO statute by foreign governments to collect taxes from cigarette companies, it has wider implications. The denial of certiorari benefits e-commerce. Although, other circuits are not bound by the opinion of the Second Circuit, and the Supreme Court could grant certiorari in a future case.

TLJ published a lengthy story on the Court of Appeals' opinion in this case, the Supreme Court's opinion in Pasquantino v. United States, and how these two cases may impact taxation of e-commerce. See, story titled "2nd Circuit Holds Foreign Governments Cannot Use RICO to Collect Taxes in US Courts" in TLJ Daily E-Mail Alert No. 1,213, September 14, 2005.

In the present case, the Court of Appeals held that the European Community (EC), and various European nations, cannot use the U.S. Racketeer Influenced and Corrupt Organizations Act (RICO), which is codified at 18 U.S.C. 1961-1968, to sue companies in U.S. courts for the purpose of collecting taxes allegedly due to the EC and European nations.

Previously, in Pasquantino, the Supreme Court upheld efforts the U.S., on behalf of Canada, to collect taxes in the U.S. However, in Pasquantino, unlike EC v. RJR Nabisco, it was the U.S., not the foreign government, that maintained the action. Moreover, it alleged violation of the wire fraud statute, which is codified at 18 U.S.C. 1343.

Both the present case and Pasquantino arise out of efforts by foreign governments to collect taxes on goods made in the US and sold in their countries. David and Carl Pasquantino bought alcohol legally in the state of Maryland, and paid all US taxes. They had a third person to smuggle it into Canada in car trunks, and sell it in Canada, without paying the required excise taxes, in violation of Canadian law. The venture made business sense because Canadian taxes on alcohol are much higher than those in the US. The US revenue rule prevents US prosecutors from prosecuting for violation of foreign tax laws. However, the Court reasoned that U.S. was not enforcing Canadian tax laws; it was enforcing the wire fraud statute.

It is one tendency of taxing authorities to impose and collect greater taxes on persons and entities who have less political influence, than those who have more political influence. This often results in taxing authorities seeking means to tax non-resident persons and entities, while providing exemptions to residents. Some national governments, and U.S. states, exhibit this tendency.

Moreover, e-commerce provides a particularly attractive target for such taxing authorities, because e-commerce entities have some connection to many, if not all, states and nations. E-commerce companies have web sites accessible anywhere in the world, sell their products and services over the internet all over the world, and maintain some operations in many nations. Taxing authorities can easily assert a connection between their state, and the entities to be taxed. And U.S. courts can exercise personal jurisdiction over many.

Had the Supreme Court granted certiorari, reversed the Second Circuit, and allowed the EC to use the RICO statute against NJR, then foreign governments would be able to file RICO actions in U.S. District Courts to collect taxes from businesses over which the U.S. courts have jurisdiction. This would have provided tax collectors from around the world a procedure and a venue for collecting arbitrary and discriminatory taxes from foreign entities.

The Supreme Court issued no opinion. One might speculate as to why the Court denied certiorari in this case, but upheld the government action in Pasquantino. First, in the present case the action is maintained by foreign governments, not the U.S. government. That is, in the present case, the U.S. government has not manifested any consent to the tax collection effort. Second, the composition of the Court has changed. The Pasquantino case was decided with a 5-4 split. One member of the majority has died (William Rehnquist) and another is about to retire (Sandra O'Connor).

The present case is European Community, et al. v. RJR Nabisco, et al., Sup. Ct. No. 05-549. It is a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 02-7325 (L), 02-7330 (CON), and 02-7323.

The EC is represented by John Halloran of the law firm of Speiser Krause Nolan & Granito. RJR is represented by Murray Garnick of the law firm of Arnold & Porter.

Supreme Court Seeks SG Brief in Patent Case Involving Inherent Anticipation

1/9. The Supreme Court invited the Solicitor General to submit a brief on the question of whether the Court should grant certiorari in SmithKline Beecham v. Apotex. See, Order List [32 pages in PDF] at page 3.

This is a patent case involving invalidity for inherent anticipation, and the experimental use exception to the public use bar of 35 U.S.C. 102(b). Section 102 provides, in part, that "A person shall be entitled to a patent unless ... the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States ..."

The U.S. Court of Appeals (FedCir) issued its opinion [59 pages in PDF] by Judge Randall Rader on April 8, 2005. See also, order [8 pages in PDF] denying rehearing en banc, with dissent by Judge Pauline Newman. See also, Supreme Court docket and Patently-O summary.

This case is Sup. Ct. No. 05-489. The Appeals Court numbers are 03-1285 and 03-1313. See also, amicus curiae brief [23 pages in PDF] of the Washington Legal Foundation.

Apotex is represented by Hugh Scott Balsam of the law firm of Lord Bissel & Brook.

SmithKline Beecham is represented by Carter Phillips, a partner in the Washington DC office of the law firm of Sidley Austin Brown & Wood. Phillips has also represented Microsoft in the Eolas patent case. On October 31, 2005, the Supreme Court denied certiorari in Microsoft v. Eolas Technologies. See, Order List [16 pages in PDF] at page 15. That case is Sup. Ct. No. 05-288. See also, story titled "Supreme Court Denies Certiorari in Microsoft v. Eolas" in TLJ Daily E-Mail Alert No. 1,244, November 1, 2005.

Phillips will also be a witness later this week at the Senate Judiciary Committee's (SJC) hearing on the nomination of Judge Sam Alito to be a Justice of the Supreme Court.

More Supreme Court News

1/9. The Supreme Court denied certiorari in Hoffer v. Microsoft. See, Order List [32 pages in PDF] at page 26. This lets stand the April 22, 2005, opinion [14 pages in PDF] of the U.S. Court of Appeals (FedCir). See also, story titled 'Federal Circuit Rules in Hoffer v. Microsoft" in TLJ Daily E-Mail Alert No. 1,124, April 27, 2005. This case is Sup. Ct. No. 05-7075. The Court of Appeals number is No. 04-1103. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of California, D.C. No. 01-CV-20731 JW.

People and Appointments

1/9. Harris Miller, former head of the Information Technology Association of America (ITAA), will run for the U.S. Senate in the state of Virginia. The incumbent, Sen. George Allen (R-VA), is one of the Senate's leading technophiles.

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Washington Tech Calendar
New items are highlighted in red.
Tuesday, January 10

The House will not meet. It will convene for the 2nd Session of the 109th Congress on Tuesday, January 31, 2006.. See, Majority Whip's calendar.

The Senate will not meet. It will convene for the 2nd Session of the 109th Congress on Wednesday, January 18, 2006. See, 2006 Senate calendar.

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will hold an open meeting. The tentative agenda for this meeting includes a presentation on the Federal Networking and Information Technology Research and Development (NITRD) program, an update on nanotechnology, and a briefing on the U.S.-China S&T Forum. See, notice in the Federal Register, December 23, 2005, Vol. 70, No. 246, at Page 76286. Location: Washington Room, Hotel Washington located at 515 15th St., NW.

9:30 AM. Day two of the Senate Judiciary Committee's (SJC) hearings on the nomination of Judge Sam Alito to be a Justice of the Supreme Court. Sen. Arlen Specter (R-PA), the Chairman of the SJC, will begin the first round of questioning of Judge Alito. Location: Room 216, Hart Building.

10:00 AM. The Supreme Court will hear oral argument in Texaco v. Dagher and Shell v. Dagher. This case involves the application of antitrust law to lawful joint ventures. See, story titled "Supreme Court Grants Certiorari in Dagher" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005, and story titled "Verizon Seeks Reversal in Texaco v. Dagher" in TLJ Daily E-Mail Alert No. 1,232, October 12, 2005. See also, Supreme Court docket.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microchip Technology v. Chamberlain Group, No. 05-1339. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Resonate, Inc. v. Alteon Websystems, No. 05-1336. This is a patent case involving internet traffic routers and switches. See also, Resonate, Inc. v. Alteon Websystems, Inc., 338 F.3d 1360 (Fed. Cir. 2003). Location: Courtroom 201, 717 Madison Place, NW.

Wednesday, January 11

9:30 AM. Day three of the Senate Judiciary Committee's (SJC) hearings on the nomination of Judge Sam Alito to be a Justice of the Supreme Court. The SJC will hold the second round of questioning of Judge Alito. Location: Room 216, Hart Building.

11:00 - 11:45 AM. The National Science Board's (NSB) Election Committee will meet to fill a vacancy on the Executive Committee. This meeting is closed to the public. See, notice in the Federal Register, January 9, 2006, Vol. 71, No. 5, at Pages 1455 - 1456. Location: National Science Foundation, Room 1235, 4201 Wilson Boulevard, Arlington, VA.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Post-Grokster: What the Supreme Court Decision Means to You and Your Clients". The speakers will include John Hornick (Finnegan Henderson). The price to attend ranges from $20-$40. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch regarding the "Implications of the recent Media Bureau decisions rescinding grants of assignment/transfer of control applications after the parties have closed". For more information, contact Howard Liberman at hliberman at dbr dot com. Location: __.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the first in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

3:00 - 5:00 PM. The Broadcasting Board of Governors will meet. This meeting is closed to the public. See, notice in the Federal Register, January 9, 2006, Vol. 71, No. 5, at Page 1409. Location: Middle East Broadcasting Networks, Inc., 7600 Boston Blvd., Suite D, Springfield, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling (DR) filed by Grande Communications that seeks a DR regarding the treatment of traffic terminated through Grande to end users of interconnected local exchange carriers (LECs), in circumstances where customers of Grande have certified that the traffic originated in Internet protocol (IP) format. See, notice in the Federal Register, November 2, 2005, Vol. 70, No. 211, at Pages 66411 - 66412. See also, story titled "FCC Sets Comment Deadlines for DR Petition on IP Originated VOIP Traffic and Intercarrier Compensation" in TLJ Daily E-Mail Alert No. 1,246, November 3, 2005. This proceeding is WC Docket No. 05-283.

Deadline to submit to the Department of Commerce's Technology Administration nominations of individuals to serve on the National Medal of Technology Nomination Evaluation Committee. See, notice in the Federal Register, December 12, 2005, Vol. 70, No. 237, at Page 73453.

Thursday, January 12

9:30 AM. Day four of the Senate Judiciary Committee's (SJC) hearings on the nomination of Judge Sam Alito to be a Justice of the Supreme Court. The SJC may begin to hear testimony from panels of outside witnesses. Location: Room 216, Hart Building.

The Federal Communications Commission (FCC) will begin its FM Broadcast Construction Permits Auction (Auction No. 62).  See, Public Notice [PDF] numbered DA 05-3204, and dated December 21, 2005.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Jan Voda v. Cordis Corporation, App. Ct. No. 05-1238. This is a patent dispute arising in the U.S. District Court (WDOkla), D.C. No. 03-CV-1512. The issue is whether the District Court has supplemental jurisdiction over foreign patent infringement claims in a U.S. patent infringement action under 28 U.S.C. 1367(a). See, amicus brief [PDF] of the AIPLA, and amicus brief [35 pages in PDF] of the IPO. Location: Courtroom 402, 717 Madison Place, NW.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Patent Law for Non-Patent Lawyers". The speakers will include Jacqueline Bonilla (Foley & Lardner) and Elizabeth Brenner (Rothwell Figg Ernst & Manbeck). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day one of a two day conference hosted by the National Institute of Standards and Technology's (NIST) Intelligent Systems Division and the Defense Advanced Research Projects Agency (DARPA) titled "Evaluating Cognitive Systems Workshop". This conference is closed to the public. See, notice. Location: NIST, Building 101, Lecture Room A, 100 Bureau Drive, Gaithersburg, MD.

Friday, January 13

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in North American Catholic Educational Programming Foundation v. FCC, No. 04-1384, a case regarding Instructional Fixed Television Service ((ITFS). See, FCC's brief [50 pages in PDF]. Judges Ginsburg, Sentelle and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sandisk v. STMicroelectronics, No. 05-1300. Location: Courtroom 402, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Legislation and IP-Based Communications Practice Committees will host a brown bag lunch titled "Legislative Reform Affecting IP-Based Services". The speakers will be Howard Waltzman (Majority Chief Telecommunications Counsel for the House Commerce Committee), Amy Levine (Legislative Counsel to Rep. Rick Boucher (D-VA)), Melissa Newman (VP Regulatory Affairs at Qwest), and Chris Putala (EVP of EarthLink). RSVP to Wendy Parish at wendy at fcba dot org. Location: Verizon Wireless, 1300 Eye Street, NW, Suite 400 West.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Scientific Talent and U.S. Economic Leadership". The speakers will be Richard Freeman (Harvard), Steven Davis (AEI), David Weinstein (Columbia), and Kevin Hassett (AEI). Freeman will discuss his paper titled "Does Globalization of the Scientific/Engineering Workforce Threaten U.S. Economic Leadership?". See, notice. For more information, contact Chris Pope at cpope at aei dot org or Veronique Rodman (reporters) at vrodman at aei dot org. Location: 12th floor, 1150 17th St., NW.

Day two of a two day conference hosted by the National Institute of Standards and Technology's (NIST) Intelligent Systems Division and the Defense Advanced Research Projects Agency (DARPA) titled "Evaluating Cognitive Systems Workshop". This conference is closed to the public. See, notice. Location: NIST, Building 101, Lecture Room A, 100 Bureau Drive, Gaithersburg, MD.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding the NIST Draft Special Publication 800-76, titled "Biometric Data Specification for Personal Identity Verification".

Deadline to submit comments to the Antitrust Modernization Commission (AMC) on international antitrust issues. The AMC seeks comments in response to the following: "The adoption of competition or antitrust laws by over 100 jurisdictions around the world, as well as the globalization of commerce and markets, has given rise to the potential for conflict between the United States and foreign jurisdictions with respect to enforcement actions taken and remedies sought. Are there multilateral procedures that should be implemented, or other actions taken, to enhance international antitrust comity? In commenting, please address the significance of the issue, what solutions might reduce that problem, and how such solutions could be implemented by the United States." See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69510 - 69511.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to a petition for declaratory ruling [34 pages in PDF] filed by the Fax Ban Coalition that asks the FCC to find that the FCC has exclusive authority to regulate interstate commercial fax messages, and that  17538.43 of the California Business and Professions Code, and all other State laws that purport to regulate interstate facsimile transmissions, are preempted by the TCPA, which is codified at 47 U.S.C. 541.

Monday, January 16

Martin Luther King's birthday.

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

Deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) regarding its "Proposed Principles for Federal Support of Graduate and Postdoctoral Education and Training in Science and Engineering". See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Pages 69563 - 69565.

Tuesday, January 17

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch titled "The Top Ten Technological Trends Everybody Should Know About". The speakers will be John Wong and the staff of the Federal Communications Commission's (FCC) Media Bureau's Engineering Division. RSVP to Ben Golant at ben dot golant at fcc dot gov. Location: Willkie Farr & Gallagher, 1875 K St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the notice of proposed rulemaking (NPRM) portion of its Report and Order (R&O) and NPRM of August 5, 2005 regarding regulation of information services. The R&O classified wireline broadband internet access services as information services. The NPRM proposes to impose new regulatory burdens on information services. This item is FCC 05-150 in WC Docket No. 05-271, CC Docket No. 02-33, CC Docket No. 01-337, CC Docket Nos. 95-20 and 98-10, and WC Docket No. 04-242. See, story titled "FCC Classifies DSL as Information Service" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005. The FCC released the text [133 pages in PDF] of this item on September 23, 2005. See, notice in the Federal Register, October 17, 2005, Vol. 70, No. 199, at Pages 60259 - 60271.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding its rules affecting Wireless Radio Services. This item is FCC 05-144 in WT Docket Nos. 03-264. The FCC adopted this item on July 22, 2005. It released the text [67 pages in PDF] on August 9, 2005. See, notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60770 - 60781.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding a petition for rulemaking of 13 hearing impairment related entities. Their petition requests that the FCC initiate a rulemaking proceeding to mandate captioned telephone relay service and to approve internet protocol captioned telephone relay service. The FCC's Public Notice [PDF] states that "Captioned telephone service is a form of telecommunications relay service (TRS) that permits persons to simultaneously both listen to what the other party is saying and read captions of what the other party is saying on the same device. Presently the service is eligible for compensation from the Interstate TRS Fund (Fund), but is not mandatory. The petition asks the Commission to initiate a rulemaking for the purpose of making captioned telephone service a mandatory form of TRS and approving Internet Protocol (IP) captioned telephone service as eligible for compensation from the Fund." (Footnotes omitted). This notice is DA 05-2961 in CG Docket No. 03-123. See also, notice in the November 30, 2005, Vol. 70, No. 229, at Pages 71849 - 71850.