4/19. The U.S. Court of Appeals (FedCir) issued its divided opinion [15 pages in PDF] in Lava Trading v. Sonic Trading Management, vacating the District Court's judgments of non-infringement in a patent infringement case involving software for aggregating information from multiple securities trading systems.

The District Court held a Markman hearing, issued a claim construction from the bench, and entered judgments of non-infringement, without ruling on counterclaims, including invalidity. The Court of Appeals vacated and remanded. However, this case, in the least, demonstrates that deciding infringement claims, following Markman hearings and claims construction, but not deciding counterclaims, can place the Court of Appeals in an awkward position. However, the dissent used this case to argue the absurdity of the Markman conclusion that claim construction is solely a legal issue.

Lava Trading owns by assignment U.S. Patent No. 6,278,982, titled "Securities trading system for consolidation of trading on multiple ECNS and electronic exchanges". ECNs are electronic trading networks. This patent claims software that aggregates and integrates information from various systems for buying and selling securities.

Lava filed a complaint in U.S. District Court (SDNY) against Sonic Trading Management and others alleging patent infringement. The defendants counterclaimed that the patent is invalid and unenforceable.

The District Court held a Markman hearing. See, en banc opinion of the Federal Circuit in Markman v. Westview Instruments, Inc., 52 F.3d 967 (1995), and opinion of the Supreme Court in Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), holding that construction of patent claims is to be decided by the court, rather than by juries. These holdings also provide that the Federal Circuit has appellate jurisdiction over claims construction.

The District Court then issued a claim construction from the bench. The parties then stipulated to judgments of non-infringement. The District Court did not rule on the invalidity and unenforceability counterclaims. The District Court issued a Rule 54(b), FRCP, certification. This appeal followed.

Judge Randall Rader (at right), writing for the majority of the three judge panel, acknowledged that "These pending counterclaims put this court in the awkward position of reviewing a claim construction that may implicate issues and claims beyond this court’s current reach." He also noted that the bench ruling "does not supply any meaningful comparison of the accused products to the asserted claims. Without knowledge of the accused products, this court cannot assess the accuracy of the infringement judgment under review and lacks a proper context for an accurate claim construction."

Rader commented that "this appeal takes on the attributes of something akin to an advisory opinion on the scope of the '982 patent", but concluded nevertheless that the Court of Appeals has jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

The majority set aside the claims construction, and the judgments based upon them. Hence, it vacated and remanded.

Judge Haldane Robert Mayer dissented. He wrote that "Because there was no final judgment from which to appeal in the district court due to the interrelatedness of the infringement claim and the unresolved unenforceability counterclaim, I would dismiss this case for lack of jurisdiction."

However, he did not stop there. He continued that this case is "yet another example of the unfortunate consequences" of the Markman decision, which "cemented this court’s jurisprudence with respect to claim construction as being purely a matter of law subject to de novo review."

He opined that "Because claim construction is treated as a matter of law chimerically devoid of underlying factual determinations, there are no ``facts´´ on the record to prevent parties from presenting claim construction one way in the trial court and in an entirely different way in this court. By not dismissing this case, we issue a decision based on an undeveloped record. We set ourselves up to have to decide claim construction again later, which could well differ from the ruling today. Furthermore, allowance of an appeal of the trial court’s perfunctory, offhand ruling from the bench, for all intents and purposes allows an interlocutory appeal of claim construction, which portends chaos in process."

This case is Lava Trading, Inc. v. Sonic Trading Management, LLC, U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 05-1177 and 05-1192, appeals from the U.S. District Court for the Southern District of New York, Judge Thomas Griesa presiding. Judge Rader wrote the opinion of the Court of Appeals, in which Judge Linn joined. Judge Mayer wrote a dissent.

4/19. The U.S. Court of Appeals (11thCir) issued its opinion [32 pages in PDF] in MCI WorldCom Communications v. BellSouth Telecommunications, a case regarding interconnection and access to unbundled network elements, and 47 U.S.C. §§ 251 and 252.

Competitive local exchange carriers (CLECs) petitioned the Florida Public Service Commission (FPSC) in 1998 to set rates for access to the unbundled network elements of the incumbent local exchange carrier (ILEC), BellSouth Telecommunications.

The FPSC adopted an order in 2002 that set the rates for the use of the UNEs of BellSouth by CLECs. The FPSC adopted a model that employs three scenarios that model the different types of wire loops instead of a unitary network comprised of all three types of wire loops. The three scenarios are (1) copper wire only, (2) BST2000, which uses copper for wire loops up to 12,000 feet and fiber optic cable for loops of longer lengths, and (3) the integrated digital loop carrier technology for fiber optic switch loop combinations under which the CLEC must lease both the wire loop and the switch. The FPSC model also incorporated an inflation factor to account for BellSouth's cost of capital. Finally, the FPSC model also created three tiers for geographic cost based deaveraging.

MCI WorldCom filed a complaint in U.S. District Court (NDFl) against BellSouth, the FPSC, and its members, pursuant to 47 U.S.C. § 252(e)(6), seeking declaratory and injunctive relief. The Florida Digital Network intervened.

The District Court held that the FPSC multiple scenario model violates federal law. It upheld the FPSC's inflation factor and geographic cost based deaveraging model.

BellSouth appealed the three scenarios holding. MCI WorldCom appealed the inflation factor holding. And, Florida Digital Network appealed the geographic cost based deaveraging model holding.

The Court of Appeals held that the District Court "court erred when it determined federal law forbids the use of multiple scenarios, and we remand this action to the district court to evaluate whether each scenario in the pricing model approved by the Florida Commission complies with federal law." It also held that the FPSC "did not err when it approved the inflation factor and the geographic cost-based deaveraging model."

Hence, it reversed and remanded in part, and affirmed in part.

This case is MCI WorldCom Communications, Inc., et al. v. BellSouth telecommunications, Inc., et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-12252, an appeal from the U.S. District Court for the Northern District of Florida, D.C. No. 01-00492-CV-4-SPM/AK. Judge Pryor wrote the opinion of the Court, in which Judges Carnes and Wilson joined.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.

The House will not meet on Monday, April 10, through Friday, April 21. See, Republican Whip Notice and Whip's calendar.

The Senate will not meet on Monday, April 10, through Friday, April 21. See, 2006 Senate calendar.

9:30 AM. The U.S. International Trade Commission (USITC) will hold a hearing on the probable economic effects of the proposed U.S.-Republic of Korea Free Trade Agreement. See, notice in the Federal Register, February 28, 2006, Vol. 71, No. 39, at Pages 10066-10067. The USITC states that if it receives no applications to appear, it will cancel the hearing. For more information, call the USITC at 202 205-2000. Location: USITC, 500 E Street, SW.

10:00 AM. Securities and Exchange Commission's (SEC) Advisory Committee on Smaller Public Companies will hold a public meeting. See, notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18122. Location: SEC, Multi-Purpose Room L006, 100 F Street, NE.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and Diversity Committee will host a brown bag lunch. The topic will be "The Role of Mentoring". The speakers will be Parul Desai (Media Access Project), David Don (Comcast), Linda Oliver (Hogan & Hartson), Peter Shields (Wiley Rein & Fielding), and Riley Temple (Halprin Temple). Questions to the panelists may be submitted in advance to Chris Fedeli at 202-828-9874 or cfedeli at crblaw dot com or Cathy Hilke at 202-719-7418 or chilke at wrf dot com. RSVP to Christy Hammond at 202-719-7365 or chammond at wrf dot com. Location: Wiley Rein & Fielding, Conference Center, 1776 K St., NW.

12:00 NOON - 1:15 PM. The American Electronics Association (AeA) will host an event at which it will release a report titled "Cyberstates", which contains state by state data on high tech employment, wages, exports, and research and development expenditures. Lunch will be served. RSVP to Malinda Bacchus at malinda_bacchus at aeanet dot org or 202-682-4455. Location: Room 1537, Longworth Building.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference's (WRC-07 Advisory Committee) Informal Working Group 1: Terrestrial and Space Science Services will hold a meeting. See, notice [PDF]. Location: Lockheed Martin Corporation, 1550 Crystal Drive, Suite 300, Arlington, VA.

Day one of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference's (WRC-07 Advisory Committee) Informal Working Group 5: Regulatory Issues will hold a meeting. See, notice. Location: Boeing, 1200 Wilson Boulevard, Arlington, VA.

10:30 AM - 12:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "CFIUS Reform: National Security and International Investment". Thomas Donnelly (AEI), Clark Ervin (Aspen Institute), Kristin Forbes (MIT's Sloan School of Management), David Marchick (Covington & Burling), and Phillip Swagel (AWI). See, notice. Press contact: Veronique Rodman at 202-862-4871 or vrodman at aei dot org. Location: 12th floor, 1150 17th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "E-Discovery 2006: New Cases and New Rules". The speakers will include John Facciola (U.S. Magistrate Judge), Jonathan Redgrave (Redgrave Daley Ragan & Wagner), Christopher Jensen (Hudson Legal), Amy Bowser (Mayer Brown Rowe & Maw), Donna Ely (Office of Federal Housing Enterprise Oversight), Douglas Davison (Wilmer Hale). The price to attend ranges from $5-$10. 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 (FCBA) will host an event titled "Wireless Luncheon with the 8th Floor Legal Advisors". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on April 18. See, registration form [PDF]. Location: Sidley Austin, 1501 K St., NW.

Day two of a two day closed meeting of the Defense Science Board 2006 Summer Study on Information Management for Net-Centric Operations. See, notice in the Federal Register, April 11, 2006, Vol. 71, No. 69, Page 18292. Location: 3601 Wilson Boulevard, 3rd Floor, Arlington, VA.

Deadline to submit to the Office of the U.S. Trade Representative (USTR) written requests to testify at the USTR's May 3 hearing on the proposed free trade agreement (FTA) between the U.S. and Malaysia. The USTR seeks testimony on "electronic commerce issues", "trade-related intellectual property rights issues", "barriers to trade in services", and other topics. See, notice in the Federal Register, March 22, 2006, Vol. 71, No. 55, at Pages 14558-14559.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [52 pages in PDF] regarding the assessment and collection of regulatory fees for fiscal year 2006. This NPRM is FCC 06-38 in MD Docket No. 06-68. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17410-17433.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to AT&T's April 7 petition for a limited waiver of section 61.42(g) of the FCC's rules so that it may exclude True IP to PSTN (TIPToP) service from any price cap basket in the upcoming 2006 annual access tariff filing. See, FCC notice [PDF].

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Verizon's petitions seeking relief from certain dominant carrier regulations for in-region, interexchange services that would otherwise apply to Verizon's provision of those services in the former Bell Atlantic region after March 19, 2006, when the requirements of section 272 of the Act sunset with respect to the final three Verizon states. See, FCC notice [PDF]. This is WC Docket No. 06-56.

3:00 - 7:00 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. See, notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18118. Location: 4201 Wilson Blvd., Room 1235, Arlington, VA.

The House will return from its "Spring District Work Period". See, Majority Whip's calendar.

The Senate will return from its spring recess. See, 2006 Senate calendar.

7:30 AM - 3:30 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. See, notice in the Federal Register, March 10, 2006, Vol. 71, No. 47, at Page 12403, and notice in the Federal Register, April 10, 2006, Vol. 71, No. 68, at Page 18118. Location: 4201 Wilson Blvd., Room 1235, Arlington, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office's (USPTO) regarding its interim rule revising the rules of practice relating to the filing date requirements for ex parte and inter partes reexamination proceedings. See, notice in the Federal Register, February 23, 2006, Vol. 71, No. 36, at Pages 9260-9262.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its second further notice of proposed rulemaking (2ndFNPRM) regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages. See, text [14 pages in PDF] of this 2ndFNPRM. The FCC adopted this item at its meeting of March 17, 2006. See, notice in the Federal Register, March 27, 2006, Vol. 71, No. 58, at Pages 15145-15147; and story titled "FCC Adopts Further NPRM Re Children's Programming Obligations" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. This item is FCC 06-33 in MM Docket No. 00-167.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology's (NIST) Electron and Optical Physics Division for financial assistance for FY 2006 by the Center for Nanoscale Science and Technology (CNST) Financial Assistance Program. See, notice in the Federal Register, March 31, 2006, Vol. 71, No. 62, at Pages 16285-16288.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL PCC.II (Radiocommunication including Broadcasting) meetings on June 20-23, 2006, in Lima, Peru, and on October 17-20, 2006, in San Salvador, El Salvador. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

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

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the request contained in the Twelfth Annual Report on the status of competition in the market for the delivery of video programming for comments on the best methodologies and data for measuring the 70-percent thresholds and, if the thresholds have been met, what action might be warranted to achieve the statutory goals. See, notice of extension [PDF].

8:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speakers will be Sen. John Sununu (R-NH) and Rep. Rick Boucher (D-VA). Registrations and cancellations are due by 5:00 PM on April 20. The price to attend ranges from $30 to $55. See, registration form [PDF]. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

9:00 AM - 12:45 PM. The Cato Institute will host a conference titled "Copyright Controversies Freedom, Property, Content Creation, and the DMCA". Lunch will follow the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Parity, Platforms and Protection: The Future of the Music Industry in the Digital Radio Revolution". See, notice. The SJC frequently cancels or postpones hearings without notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee's (SCC) Subcommittee on Technology will hold a hearing titled "Fostering Innovation in Math and Science Education". This hearing will address "the importance of science and mathematics education from kindergarten through graduate school in fueling future developments in the 21st Century’s high-tech innovation economy". Sen. John Ensign (R-NV) will preside. 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: __.

10:00 AM. The Senate Finance Committee will hold a hearing titled "Authorizations of Customs and Trade Functions". See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Capitol Markets will hold a hearing titled "America’s Capital Markets: Maintaining Our Lead in the 21st Century". Location: Room 2128, Rayburn Building.

2:00 PM. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law
will hold an oversight hearing titled "The Department of Justice: Executive Office for United States Attorneys, Civil Division, Environment and Natural Resources Division, Executive Office for United States Trustees, and Office of the Solicitor General". Location: Room 2141, Rayburn Building.

TIME? Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The BIS regulates exports. The agenda includes "VOIP Networks". See, notice in the Federal Register, April 13, 2006, Vol. 71, No. 71, at Page 19164. For more information, contact Yvette Springer at 202-482-4814. Location: Hoover Building, Room 3884, 14th and Pennsylvania Ave., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Key Court Rulings Affecting Information Technology Practices and Stategies". It will cover "key recent court decisions affecting the protection, licensing and distribution of computer software, databases and other information content. It will also examine decisions on liability relating to the creation, use, procurement, security and support of information technology and information systems, the Internet and e-commerce". The speakers will include J.T. Westermeier (DLA Piper Rudnick Gray Cary). 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.

The National Institute of Standards and Technology (NIST) will host an event titled "FISMA Phase II Workshop on a Program for Accreditation of Information Security Assessment Services". See, notice. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

TIME? Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The BIS regulates exports. The agenda includes "VOIP Networks". See, notice in the Federal Register, April 13, 2006, Vol. 71, No. 71, at Page 19164. For more information, contact Yvette Springer at 202-482-4814. Location: Hoover Building, Room 3884, 14th and Pennsylvania Ave., NW.

9:30 - 11:30 AM. The House Science Committee will hold a hearing on HR 5143, the "H-Prize Act of 2006". The purpose of this bill is to incent technological innovation by providing for the government to give monetary awards to businesses, universities, and individuals that innovate. It would apply only to hydrogen energy technologies. Location: Room 2318, Rayburn Building.

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07 Advisory Committee) will meet. See, notice in the Federal Register, March 1, 2006, Vol. 71, No. 40, at Page 10530. Location: FCC, 445 12th Street, SW., Room TW-C305.

2:15 PM. Day one of a two day conference hosted by the American Enterprise Institute (AEI) titled "Federal Preemption: Law, Economics, and Politics". See, notice. Press contact: Veronique Rodman at 202-862-4870 or VRodman at aei dot org. Location: AEI, 12th floor, 1150 17th St., NW.

3:00 - 4:00 PM. The National Science Foundation's (NSF) National Science Board will hold a closed meeting to discuss vacancies. See, notice in the Federal Register, April 12, 2006, Vol. 71, No. 70, at Page 18779.

5:15 PM. Deadline to submit to the U.S. International Trade Commission (USITC) post-hearing statements and briefs regarding the probable economic effects of the proposed U.S.-Republic of Korea Free Trade Agreement. (The hearing is scheduled for April 20.) See, notice in the Federal Register, February 28, 2006, Vol. 71, No. 39, at Pages 10066-10067.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Protect and Promote Your Client's Artwork and Commercial Images". The speakers will include Allison Cohen (attorney) and Laura Possessky (Gura & Possessky). 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.

Deadline to submit comments to the Library of Congress's Copyright Office regarding its proposed fee increases, to take effect on July 1, 2006. See, notice in the Federal Register, March 28, 2006, Vol. 71, No. 59, at Pages 15368-15371.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding pulver.com's and Evslin's petition [18 pages in PDF] for a rulemaking regarding number porting in emergencies. See, FCC notice [PDF] and story titled "Pulver Asks FCC to Require Greater Number Porting in Emergencies" in TLJ Daily E-Mail Alert No. 1,329, March 14, 2006.