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April 2, 2007, Alert No. 1,559.
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US and Korea Announce FTA

4/2. The Office of the U.S. Trade Representative (OUSTR) announced in a release that the US and Korea have concluded a free trade agreement (FTA). The OUSTR did not release the text of any FTA.

The OUSTR release states that this FTA "provides high-level standards for protection and enforcement of intellectual property rights, including trademarks, copyrights and patents, consistent with U.S. standards."

The OUSTR release also states that this FTA "will expand market access and investment opportunities in a number of service sectors, including telecommunications and e-commerce."

William Archey, head of the American Electronics Association (AeA) stated in a release that "this FTA will boost high-tech exports by eliminating tariffs on most products, improving access for services, strengthening intellectual property protection, and tackling non-tariff regulatory barriers"

The AeA's Rob Mulligan added that "improved regulatory transparency rules aimed at non-tariff impediments currently facing US companies in Korea should pave the way for improved access to this rapidly growing market for high-tech products".

Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Finance Committee, stated in a release that "I have mixed feelings." He represents a agriculture state.

"On the one hand, the agreement is commercially significant, with almost 95 percent of tariffs on industrial and consumer goods being eliminated within three years. U.S. pork producers and soybean producers stand to benefit a lot, and so do our service providers. We already have a $72 billion trading relationship with the Koreans, and full implementation of this agreement would promote significant growth in our bilateral trade." But, Sen. Grassley continued, "I'm disappointed that rice was excluded from the agreement. ... Even more problematic is the absence of an agreement to remove Korea’s ban on U.S. beef, which is not scientifically justified."

OUSTR Releases Trade Report

4/2. The Office of the U.S. Trade Representative (OUSTR) released its report  [2.6 MB PDF file] titled "2007 National Trade Estimate Report" (NTE). It contains a country by country survey of significant foreign barriers to U.S. exports.

See, OUSTR release summarizing the report, Forward [5 pages in PDF], and OUSTR page with hyperlinks each section of the report.

The survey includes within the definition of export barriers the "Lack of intellectual property protection (e.g., inadequate patent, copyright, and trademark regimes)" and "Trade restrictions affecting electronic commerce (e.g., tariff and nontariff measures, burdensome and discriminatory regulations and standards, and discriminatory taxation)". (Parentheses in original.)

It also includes "Services barriers (e.g., limits on the range of financial services offered by foreign financial institutions, regulation of international data flows, and restrictions on the use of foreign data processing)" and "Investment barriers (e.g., limitations on foreign equity participation and on access to foreign government-funded research and development (R&D) programs, local content and export performance requirements, and restrictions on transferring earnings and capital)". (Parentheses in original.)

Canada. The section [9 pages in PDF] on Canada, which is the largest market for U.S. exports, addresses several intellectual property rights issues in Canada.

For example, it sates that Canada is a signatory of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, but that it has failed to ratify either treaty.

The report also discusses the weak border measures and intellectual property rights (IPR) enforcement in Canada.

Next, it states that "Unauthorized camcording in Canadian movie theaters is an increasing source of international DVD piracy. Although camcording with intent to distribute is considered a crime in Canada, the act of camcording in a theater is not a criminal offense."

The report also states that "unauthorized use of satellite television services" may involve as many as one million households.

The report also identifies Canada's "46.7 percent limit on foreign ownership for all facilities-based telecommunications service suppliers except fixed satellite services and submarine cables".

European Union. The section [PDF] on the European Union, which is the 2nd largest market for U.S. exports, states that "In most respects, the enormous United States-EU trade and investment relationship operates smoothly and to the great benefit of companies, workers, and consumers on both sides of the Atlantic." It adds that "The EU and its Member States support strong protection for intellectual property rights (IPR)."

Although, it does point out that "The United States has expressed concerns about EU proposals to apply duties as high as 14 percent to imports of several technologically-sophisticated versions of products covered under the WTO Information Technology Agreement (ITA). Such products include certain set-top boxes with a communication function (e.g. cable boxes), flat panel displays for computers, digital still image video cameras, and certain units of automatic data processing machines (e.g. multifunction or ``all-in-one´´ printer/copier/scanner devices)." (Parentheses in original.)

Japan. The section [32 pages in PDF] on Japan, the third largest market for U.S. exports, states that the U.S. "continues to seek regulatory changes to promote competition, innovation, and choice in Japan's telecommunications sector". The report elaborates regarding interconnection, dominant carrier regulation, universal service, mobile termination, and new mobile wireless licenses.

The report also addresses Japan's efforts to promote information technologies and electronic commerce. It also addresses privacy, online fraud, and government IT procurement.

The report also addresses recommendations that the U.S. has made to Japan regarding intellectual property, such as extending the term of copyright, patent reform, and working with the U.S. to fight piracy in Asia.

PR China. The section [69 pages in PDF] on the People's Republic of China (PRC), the 4th largest market for U.S. exports, identifies numerous barriers.

It states that "despite significant progress in many areas, China's record in implementing WTO commitments is decidedly mixed. China continues to pursue problematic industrial policies that rely on trade-distorting measures such as local content requirements, import and export restrictions, discriminatory regulations and prohibited subsidies, all of which raise serious WTO concerns. China's shortcomings in enforcing laws in areas where detailed WTO disciplines apply, such as intellectual property rights, have also created serious problems for the United States and its other trading partners."

It continues that in April of 2006, as part of the Joint Commission on Commerce and Trade (JCCT), the PRC "made several commitments related to IPR protection and enforcement. It also committed ... to make adjustments to its registered capital requirements for telecommunications service providers ... China also reaffirmed past commitments to technology neutrality for 3G telecommunications standards ...".

However, it also states that "Issues like ... IPR enforcement and certain market access concerns have resisted resolution." It adds that "the lack of effective IPR enforcement remains a major challenge, as counterfeiting and piracy in China remain at unacceptably high levels and cause serious economic harm to U.S. businesses in virtually every sector of the economy."

Korea. The section [14 pages in PDF] on Korea, the 7th largest market for U.S. exports, states that the just announced free trade agreement (FTA) will be the "most commercially-significant FTA the United States has completed in 15 years."

The report discusses U.S. recommendations regarding numerous IPR issues, including IPR enforcement, technological protection measures, ISP liability, extension of the copyright term, temporary copies, book piracy, DVD piracy, patent reform, trademarks, and trade secrets.

The report also addresses U.S. recommendations regarding satellite retransmission and foreign content quotas for broadcasting and cable. The report also addresses U.S. recommendations that Korea "adhere to a policy of technology neutrality and to refrain from imposing mandatory standards or requiring the use of particular technologies that unnecessarily restrict trade or discriminate against U.S. suppliers of telecommunications or broadcast technologies or services."

The report also addresses electronic commerce and data privacy in Korea.

Russia. The section [17 pages in PDF] on Russia, which is only the 33rd largest market for U.S. exports, identifies numerous barriers.

The report states that "U.S. industry continues to be concerned about the IPR situation in Russia. U.S. copyright industries estimate they lost in excess of $1.9 billion in 2005 due to copyright piracy in Russia (business software -- $894 million; records and music -- $475 million; motion pictures -- $266 million; entertainment software -- $224 million; and books -- $42 million)."

It continues that "In 2006, Russia's optical disc production capacity continued to be far in excess of domestic demand, with pirated products apparently intended not only for domestic consumption, but also for export."

It continues that "companies continue to report patent infringement and counterfeiting of trademarked goods as a problem, especially for consumer goods, wine, distilled spirits and pharmaceuticals. Several U.S. firms have experienced problems with trademark counterfeiting, with Russian enterprises attempting to appropriate well-known foreign trademarks not currently active in Russia". It also addresses cyber squatting in Russia.

Finally, it states that "Poor enforcement of IPR is a pervasive problem. The prosecution and adjudication of intellectual property cases remains sporadic and inadequate; there is a lack of transparency and a failure to impose deterrent penalties. Russia’s customs administration also needs to significantly strengthen its enforcement efforts."

The OUSTR will soon release the results of the Section 1377 review, which focuses on barriers facing U.S. telecommunications services and equipment providers. The OUSTR will also soon issue its Special 301 report on the adequacy and effectiveness of intellectual property rights (IPR) protections in other countries.

The just released NTE report does not survey all nations. It only covers 58 major trading partners.

The report does not cover barriers to exports from the U.S. that are imposed by the U.S. government. Nor does it address U.S. barriers to exports from other countries.

House Subcommittee Questions Google Regarding Publication of Satellite Imagery

3/30. Rep. Brad Miller (D-NC), the Chairman of the House Science Committee's (HSC) Subcommittee on Investigations and Oversight sent a letter [PDF] to Google Ch/CEO Eric Schmidt requesting that "Google provide a full briefing to the Subcommittee staff within the next week" regarding Google's online publication of satellite photographs of the New Orleans area created prior to Hurricane Katrina.

Rep. Miller asked numerous questions, including "What criteria were used by Google to determine that pre-Katrina satellite images would replace post-Katrina images on the Google Web site?"

Rep. Miller also asked "Was Google contacted by the Federal Emergency Management Agency, the United States Geological Survey or any other entity of the federal government concerning any changes or revisions of the satellite imagers for the New Orleans region? If so, when were those requests received, and from whom?"

Rep. Miller wrote that Google's publication of this imagery is "fundamentally dishonest" and a "great injustice". However, he sited no federal statute or regulatory regime that is implicated by Google's actions.

Rep. James Sensenbrenner (R-WI), the ranking Republican on this Subcommittee, did not join in the letter.

Washington Tech Calendar
New items are highlighted in red.
Monday, April 2

Passover begins at sundown.

The House will not meet on April 2-6 or 9-13. See, House 2007 calendar. The next meeting will be at 2:00 PM on April 16.

The Senate will not meet on April 2-6 or 9. See, Senate 2007 calendar. The next meeting will be at 10:00 AM on April 10.

Deadline to submit comments to the Federal Acquisition Regulation (FAR) Secretariat regarding its proposal to amend the FAR to delete references to the Federal Acquisition Computer Network (FACNET). See, notice in the Federal Register, February 1, 2007, Vol. 72, No. 21, at Pages 4675-4676.

Tuesday, April 3


10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Translogic Technology v. Hitachi, App. Ct. No. 2005-1387, and In Re Translogic Technology, App. Ct. No. 2006-1192. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Advanced Technology Materials v. Praxair, App. Ct. No. 2006-1540, a patent case involving semiconductor manufacturing technology. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in UTStarcom v. Starent Networks, App. Ct. No. 2006-1295, an appeal from the U.S. District Court (NDCal) in a patent case involving technology for networking equipment that enables mobile data communications. Location: Courtroom 201, 717 Madison Place, NW.

Wednesday, April 4

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a breakfast forum titled "Understanding the Japanese Broadband Miracle". The speaker will be Takashi Ebihara, Senior Director of the Corporate Strategy Department at NTT East Corporation. RSVP to Torey Liepa at tliepa at itif dot org. Location: ITIF, Suite 200, 1250 I Street, NW.

10:00 AM. The Securities and Exchange Commission (SEC) will hold a meeting to discuss the Public Company Accounting Oversight Board's (PCAOB) proposed auditing standard for Section 404 of the Sarbanes-Oxley Act and the coordination of that proposed standard with the SEC's related pending proposal to provide guidance for management of public companies implementing Section 404. See, SEC release and release. Location: SEC, Auditorium, Room L-002, 100 F St., NW.

Thursday, April 5

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in E-Pass Technologies v. Microsoft, App. Ct. No. 2006-1604. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding its Second Further Notice of Proposed Rulemaking pertaining to aviation radio. The FCC adopted this item on October 4, 2006, and released it on October 10, 2006. This item is FCC 06-148 in WT Docket No. 01-289. See, notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at Pages 70710-70715.

Friday, April 6

Good Friday.

9:00 AM - 12:00 NOON. The National Science Foundation's (NSF) Mathematical and Physical Sciences Advisory Committee will meet. The event will also be teleconferenced. See, notice in the Federal Register, March 9, 2007, Vol. 72, No. 46, at Page 10792. Location: NSF, Room 1235, 4201 Wilson Boulevard, Arlington, VA.

5:00 PM. Deadline to submit applications to the Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Public Telecommunications Facilities Program (PTFP) for FY 2007 PTFP grants. See, NTIA notice and notice in the Federal Register, March 7, 2007, Vol. 72, No. 44, at Pages 10172-10173.

Sunday, April 8


Monday, April 9

Deadline to submit affidavits to the Copyright Office (CO) to assist it in compiling a new specialty station list "to identify commercial television broadcast stations which, according to their owners, qualify as specialty stations for purposes of the former distant signal carriage rules" of the Federal Communications Commission (FCC). This list is relevant to the cable compulsory license, which is codified at 17 U.S.C. § 111. The CO requests that "all interested owners of television broadcast stations that qualify as specialty stations, including those that previously filed affidavits, to submit sworn affidavits to the Copyright Office stating that the programming of their stations meets the requirements specified under the FCC regulations in effect on June 24, 1981." See, notice in the Federal Register, February 8, 2007, Vol. 72, No. 26, at Pages 6008-6010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding AT&T's petition for forbearance from enforcement of certain FCC cost assignment rules. See, Public Notice [3 pages in PDF] (DA 07-731). This proceeding is WC Docket No. 07-21.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the license transfer application filed by News Corporation, Directv Group, Inc., and Liberty Media Corporation. News Corps seeks to divest its interest in Directv, and Liberty Media seeks to divest its interest in News Corp. See, FCC Public Notice [PDF]. This is DA 07-637 in MB Docket No. 07-18.

Microsoft Still Owns the Windows Mark

3/29. The U.S. Court of Appeals (4thCir) issued its unpublished opinion [2 pages PDF] in Lewis v. Microsoft, affirming the judgment of the District Court, which dismissed the plaintiffs' trademark infringement claims.

This short per curiam opinion is yet another victory for Microsoft in a series of proceedings before the U.S. Patent and Trademark Office's (USPTO) Trademark Trial and Appeal Board (TTAB) and in the federal courts regarding the Windows trademark.

This case is Brenda Powers and William Flowers v. Microsoft Corporation, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-1354, an appeal from the U.S. District Court for the Eastern District of North Carolina, at Greenville, D.C. No. 5:05-cv-00343-H, Judge Malcolm Howard presiding.

People and Appointments

3/29. George Foresman, Under Secretary at the Department of Homeland Security (DHS), announced his resignation, which is not yet effective. See, statement by Michael Chertoff.

More News

4/2. The Federal Communications Commission (FCC) released its long awaited CPNI order [101 pages in PDF].

3/30. The U.S. Court of Appeals (6thCir) issued an opinion in Bridgeport Music v. Universal-MCA Music Publishing, a copyright infringement case. The Court of Appeals vacated and remanded. This case is Bridgeport Music, Inc., et al. v. Universal-MCA Music Publishing, Inc. et al., U.S. Court of Appeals for the 6th Circuit, appeals from the U.S. District Court for the Middle District of Tennessee, at Nashville.

3/30. The U.S. Court of Appeals (4thCir) issued its opinion [21 pages in [PDF] in Renaissance Greeting Cards v. Dollar Tree Stores, as trademark infringement case. The Court of Appeals affirmed the judgment of the District Court. This is an unpublished opinion, and the Court of Appeals wrote that "Unpublished opinions are not binding precedent in this circuit." Nevertheless, this opinion includes a lengthy application of the seven factors used in evaluating whether a competing mark creates a likelihood of confusion to the facts of this case. This case is Renaissance Greeting Cards, Inc. v. Dollar Tree Stores, Inc., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-1131, an appeal from the U.S. District Court for the Eastern District of Virginia, at Alexandria, D.C. No. 1:05-cv-00341-TSE, Judge T.S. Ellis presiding. Judge Faber wrote the opinion of the Court of Appeals, in which Judges Widener and Wilkinson joined.

3/26. Securities and Exchange Commission (SEC) Commissioner Paul Atkins gave a speech in Dublin, Ireland, in which he noted that recent studies by the U.S. Chamber of Commerce and others have recommended, among other things, "quick and substantial changes to the rules and guidance implementing section 404 of the Sarbanes-Oxley Act". Atkins said that "We must clear the cobwebs and incorporate how the world has changed through technology and innovation when we consider whether to shed some of our weighty regulatory precedent."

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