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January 30, 2006, Alert No. 1,299.
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Duster Bhatia Addresses PR China, IPR and Trade

1/25. Karan Bhatia, a new Deputy U.S. Trade Representative (DUSTR), gave a speech [9 pages in PDF] in Washington DC regarding the Peoples Republic of China and trade related issues. He said the PR China must enforce intellectual property rights, play a more active role in the Doha round, and do more to open its markets.

He said that Americans do not "believe that China is competing fairly when rampant piracy, counterfeiting, and copyright infringement cost American businesses billions of dollars each year. It is theft pure and simple, and American businesses are right to insist that it stop. Camcorders have no place in movie theaters, and factories turning out rip-offs of everything from handbags to autos need to be shut down."

He added that "The upshot of these difficulties, not surprisingly, is that support for the bilateral trading relationship is being challenged as never before. Perhaps most troublingly, small and medium-sized manufacturers, in particular, have begun to wonder whether a growing trade relationship is in their best interests. And, absent progress, some in Congress have indicated that they may well act."

He then said that "trade-savvy commentators", none of whom he identified, have been "increasingly disturbed about China's failure to participate in the strengthening of the global trading system. They point, for example, to China's reluctance to open its markets beyond the specific requirements of its accession agreements, or to play a more active and positive role in the Doha Round negotiations. These criticisms are not without merit -- China has not played a role in strengthening the international trading system commensurate with its commercial heft and with the benefit it has obtained from that system."

He continued that "some within China continue to advocate a very guarded approach towards economic liberalization. Their approach favors careful selection of sectors and markets for at best partial opening, continued state control, government collaboration with and protection of local interests, non-transparent decision-making, and even subtle (or not so subtle) threats of intimidation against domestic or foreign companies that buck the system." (Parentheses in original.)

"This approach", said Bhatia, "fosters inefficient allocations of resources, uneven applications of the law, and corruption. In short, advocates of this approach have not yet fully embraced the culture of free enterprise, transparency and the rule of law that is necessary for creativity and entrepreneurship to flourish and sustain long-term economic growth. China must move more fully beyond this approach, recognize the systemic value of an open and free trading system, and on this basis engage as a leading partner in global trade. Multilaterally, China must play a role commensurate with its global economic heft."

Bhatia was confirmed by the Senate as a DUSTR in November 2005. He has also worked in the Bush administration at the Department of Commerce's (DOC) Bureau of Industry and Security, and at the Department of Transportation. Before that, he worked at the law firm of Wilmer Cutler & Pickering, which is now Wilmer Hale.

Rep. Davis Writes USPTO Regarding NTP Patents and Patent Process

1/27. Rep. Tom Davis (R-VA) sent a letter to the Jon Dudas, head of the U.S. Patent and Trademark Office (USPTO), regarding the patent dispute NTP and Research in Motion (RIM) involving RIM's BlackBerry series of mobile communications and computing devices.

One of Rep. Davis's concerns is the termination of Blackberry service to government agencies and contractors. He is the Chairman of the House Government Reform Committee. He stated that "if RIM's reexamination requests had been acted upon more expeditiously, the current uncertainty could have been resolved long before it threatened critical service to the government and consumers". However, he added that the Congress has failed to adequately fund the USPTO. He asked the USPTO to provide an assessment of "current patent examination and reexamination processes".

On January 23, 2006, the Supreme Court denied RIM's petition for writ of certiorari. See, story titled "Supreme Court Denies Certiorari in Blackberry Patent Case" in TLJ Daily E-Mail Alert No. 1,295, January 24, 2006. This denial lets stand the August 2, 2005, opinion [75 pages in PDF] of the U.S. Court of Appeals (FedCir), which upheld the District Court's judgment for NTP on some claims. See, story titled "Federal Circuit Issues New Opinion in NTP v. RIM" in TLJ Daily E-Mail Alert No. 1,197, August 17, 2005. There is also a reexamination proceeding at the USPTO.

Rep. Tom DavisRep. Davis wrote that "Substantial controversy has surrounded patents held by NTP, Inc., particularly since the technology covered by those patents is also used by Research In Motion, Ltd. (RIM) to provide BlackBerry service to millions of federal government employees, contractors, and private users. While litigation and settlement negotiations between the parties are central to the controversy, the patent-approval and reexamination processes at the Patent and Trademark Office (PTO) have been significant factors in whether service continues uninterrupted to BlackBerry customers. The ability of government and private sector users to send and receive wireless email communication has become vital to our economy, global competitiveness, and quality of life."

He continued that "The adequacy of the initial review of NTP's patents has been called into question by the litigation and the pending reexamination process at the PTO. I understand the reexamination process was initiated by RIM in 2003. If adequate resources were utilized to determine the initial validity of the patents, this controversy could have been avoided. Additionally, if RIM's reexamination requests had been acted upon more expeditiously, the current uncertainty could have been resolved long before it threatened critical service to the government and consumers."

"The current patent controversy involving BlackBerry service is but one signal that our economy and ability to compete in a global economy are dependent on an efficient and competent system that brings new technological developments to the marketplace. A vital component of that system is a well-funded and efficient Patent and Trademark Office", said Rep. Davis.

He concluded that "we should not hesitate to make refinements to our own system. Because of this, I ask you to provide me with your assessment of the current patent examination and reexamination processes, what reforms are needed, and how current shortcomings impact bringing new technological developments to the marketplace, including the effect on the NTP/RIM controversy."

Rep. Davis is not a member of the House Judiciary Committee (HJC), which has jurisdiction over bills that would reform the patent process. The HJC and its members have devoted much time and hearings to patent reform in recent years. However, the HJC has not yet reported a bill in the present Congress.

1st Circuit Rules in Trademark Case

1/27. The U.S. Court of Appeals (1stCir) issued its opinion in Attrezzi v. Maytag, a trademark case. The Court of Appeals largely affirmed the District Court's judgment for Attrezzi.

Attrezzi, which operates a single kitchen products retail store, filed a complaint in U.S. District Court (DNH) against Maytag, which subsequently used the word Attrezzi to market a line of kitchen appliances. The Attrezzi business alleged violation of the unfair competition provision of the Lanham Act, as well as violation of the state of New Hampshire's trademark infringement, unfair competition, and trademark dilution statutes. The District Court found trademark infringement, issued an injunction (after a one year product sell off period), and $10 Thousand in damages. Cross appeals followed.

The Court of Appeals rejected Maytag's argument that Attrezzi was not entitled to a jury trial. It wrote that "An infringement claim for damages is a common-law rather than an equitable claim and such a claim would be triable to a jury even if joined, as here, with a request for equitable relief."

The Court of Appeals also rejected Maytag's argument that at trial there was insufficient evidence of a protectable mark and of likely customer confusion to permit a verdict for Attrezzi.

The Court of Appeals wrote, quoting from 1st Circuit precedent, that "a trade name is safeguarded by the Lanham Act only if the mark is ``distinctive创, a term of art meaning that the mark must be arbitrary or ``suggestive创 or, if merely ``descriptive,创 must have acquired ``secondary meaning.创 An arbitrary or suggestive term, being ``inherently distinctive,创 can be appropriated by a first user, while a descriptive term is subject to such appropriation ``only if it has acquired `secondary meaning by which consumers associate it with a particular producer or source.创 " (Footnote and citation omitted.)

"The jury found specially that Attrezzi LLC's use of the name Attrezzi for its goods was a suggestive, rather than a descriptive use, and that in any event the name had acquired secondary meaning. Both findings are treated as determinations of fact, ... and it is enough to qualify the name for protection if either one is established. Here, a rational jury could find the Attrezzi mark, as used to identify a service selling kitchen appliances, utensils, and dinnerware, to be suggestive."

Maytag also argued under the doctrine of foreign equivalents that since the word Attrezzi means tools in Italian, the word Attrezzi is descriptive. However, the Court rejected this, noting that the Attrezzi store sells chef's tools, not tools generally.

The Court of Appeals also rejected Maytag's argument that the evidence did not support a finding of likelihood of confusion. For example, the Attrezzi store produced eight e-mail messages mistakenly sent to its Attrezzi web site, rather than to Maytag, complaining of problems with Maytag's Attrezzi line of products.

This case is Attrezzi LLC v. Maytag Corporation, U.S. Court of Appeals for the First Circuit, App. Ct. Nos. 05-2098 and 05-2181, appeals from the U.S. District Court for the District of New Hampshire, Judge Paul Barbadoro presiding.

FRB People and Appointments

1/30. January 31 will be Alan Greenspan's last day as Chairman of the Federal Reserve Board (FRB). Ben Bernanke begins his term as Chairman on February 1.

On January 27 President Bush nominated Kevin Warsh to be a Member on the Board of Governors of the Federal Reserve System for the 2nd District, for the remainder of a fourteen year term expiring January 31, 2018. See, White House release and release.

Also on January 27, President Bush nominated Randall Kroszner to be a Member on the Board of Governors of the Federal Reserve System for the 5th District, for the remainder of a fourteen year term expiring January 31, 2008. He is currently an economics professor in the Graduate School of Business at the University of Chicago. See, White House release and release. See also, Kroszner's bibliography.

On January 25, the FRB announced that Michelle Smith will resign as Assistant to the Board and Director of the Office of Board Members. She has been chief spokesman. She will continue to work for Greenspan.

The FRB also announced the David Skidmore will become chief spokesman for the FRB on February 1, and that Pianalto Cameron will oversee other public information activities. See, FRB release.

More People and Appointments

1/27. The Securities and Exchange Commission (SEC) stated in a release that Chairman Chris Cox "will undergo surgery for removal of a thymoma on Monday, January 30. It stated that "The hospitalization is expected to last just a few days". It added that "A full recovery is expected, and it is anticipated that the surgery will complete the necessary treatment for this condition." See also, the National Institute of Health's (NIH) National Cancer Institute's web page on thyoma.

1/24. John Gibbs was named VP of State Government Affairs at Comcast Corporation. See, release.

1/26. John Reardon was named to the National Association of Broadcasters' (NAB) Television Board. He is P/CEO of Tribune Broadcasting. See, NAB release.

More News

1/26. The Computer Law Association (CLA) announced that it has changed its name to the International Technology Law Association (ITLA).

Washington Tech Calendar
New items are highlighted in red.
Monday, January 30

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.10:00 AM - 5:00 PM. The Federal Communications Commission's (FCC) advisory committee named "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will meet. See, FCC release [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

The Senate will meet at 10:00 AM. It will resume consideration of Sam Alito to be a Justice of the Supreme Court.

4:00 - 5:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The WTO Dispute Settlement System and Developing Countries". Marc Busch (Georgetown University) and Eric Reinhardt (Emory University) will present a paper. The other speakers will be Timothy Reif (House Ways and Means Committee staff), Jay Smith (Georgetown University law school), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Tuesday, January 31

Alan Greenspan's last day as Chairman of the Federal Reserve Board (FRB).

The House will convene for the 2nd Session of the 109th Congress. Votes will begin at about 3:30 PM. See, Republican Whip Notice.

RESCHEDULED FOR JANUARY 24. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Broadcast and Audio Flag". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: __.

RESCHEDULED FROM JANUARY 24. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Franchising". The witnesses will be Ivan Seidenberg (Verizon), James Ellis (AT&T), Thomas Rutledge (Cablevision Systems Corporation), Brad Evans (Cavalier Telephone), Lori Tillery (National Association of Telecommunications Officers and Advisors), Anthony Riddle (Alliance for Community Media), Gene Kimmelman (Consumers Union), and Gigi Sohn (Public Knowledge). 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. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

1:00 PM. The House Rules Committee will meet to adopt a rule for consideration of a bill to extend the expiring provisions of the USA PATRIOT Act. Location: Room H-313, Capitol Building.

RESCHEDULED FROM JANUARY 24. 2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Content". 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. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

9:00 PM. President Bush will give a speech titled "State of the Union Address" to a joint session of the House and Senate. Location: U.S. House of Representatives.

Extended deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its Policy Development Process on new gTLDs. See, ICANN notice.

Extended deadline to submit nominations for members of the Spectrum Management Advisory Committee to the Department of Commerce's National Telecommunications and Information Administration (NTIA). See, original NTIA release and notice of extension.

Wednesday, February 1

The House will meet at 10:00 AM for legislative business. It may consider a bill to extend the expiring provisions of the USA PATRIOT Act. See, Republican Whip Notice.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the fourth 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.

Ben Bernanke begins his term as Chairman of the Federal Reserve Board (FRB).

Deadline for the National Cable & Telecommunications Association's (NCTA) and Consumer Electronics Association (CEA) to file their third round of status reports with the Federal Communications Commission (FCC) regarding progress in talks regarding the feasibility of a downloadable security solution for integrating navigation and security functionalities in cable set top boxes. See, FCC's Second Report and Order [37 pages in PDF] adopted and released on March 18, 2005. This order is FCC 05-76 in CS Docket No. 97-80. See also, FCC release [PDF] summarizing this order, and story titled "FCC Again Delays Deadline for Integrating Navigation and Security Functionalities in Cable Set Top Boxes" in TLJ Daily E-Mail Alert No. 1,099, March 21, 2005. See also, notice of extensions (DA 05-1930) [2 pages in PDF].

Thursday, February 2

The House may meet. See, Republican Whip Notice.

9:30 AM. The Senate Judiciary Committee may hold an executive business meeting. The SJC frequently cancels or postpones meetings without 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 226, Dirksen Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "State Sales Tax and Congress: An Update on the SST and Corresponding Federal Legislation". The topics will include Quill v. North Dakota, S 2152 and S 2153. The speakers will include Neal Osten (National Conference of State Legislatures), Maureen Riehl (National Retail Federation), and Leonard Bickwit (Miller & Chevalier). The price to attend ranges from $15-$27. For more information, call 202 626-4363. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The Senate Judiciary Committee (SJC) may hold a hearing on pending nominations. See, notice. The SJC frequently cancels or postpones hearing without 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 226, Dirksen Building.

3:00 - 4:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Knowledge and the Growth Process: The Case of India". The speakers will be Sam Pitroda (National Knowledge Commission), John Calfee (AEI), Tarun Das (Confederation of Indian Industry), Victoria Espinel (Office of the USTR), and James Glassman (AEI). See, notice. Location: 12th, 1150 17th St., NW.

Deadline to submit reply comments to the Copyright Office in response to its notice of inquiry (NOI) regarding exempting certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. See, 17 U.S.C. 1201(a), and notice in the Federal Register, October 3, 2005, Vol. 70, No. 190, at Pages 57526 - 57531.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [24 pages in PDF] regarding amendments to its unsolicited facsimile advertising rules and the established business relationship (EBR) exception to the rules. This NPRM was adopted by the FCC on December 9, 2005, and released on December 9, 2005. It is FCC 05-206 in CG Docket No. 02-278. See, notice in the Federal Register, December 19, 2005, Vol. 70, No. 242, at Pages 75102 - 75110.

Deadline to submit reply 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.

Friday, February 3

The House will meet at 2:00 PM in pro forma session. See, Republican Whip Notice.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Mobile Relay Association v. FCC, No. 04-1413. Judges Sentelle, Henderson and Tatel will preside. This is a case regarding the FCC reorganization of the 800 MHz band. See, FCC brief [PDF]. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

Sunday, February 5

Super Bowl Sunday.

Monday, February 6

9:30 AM. The Senate Judiciary Committee will hold a hearing titled "Wartime Executive Power and the NSA抯 Surveillance Authority". The witnesses will include Attorney General Alberto Gonzales. Press contact: Blain Rethmeier (Specter) at 202 224-5225. Location: undisclosed.

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