2/5. Jon Dudas, head of the U.S Patent and Trademark Office (USPTO), spoke and answered questions at a news conference regarding patent reform legislation and related issues.

The SJC approved S 1145 [LOC | WW], the "Patent Reform Act of 2007", on July 19, 2007. However, the full Senate has not yet approved the bill.

Dudas (at right) said that the U.S. "patent system is the envy of the world", but can be improved. He said that the Bush administration would "very much like to have a bill", but that it is "strongly opposed to S 1145 in its current form". The main problem, he said, is the damages provision in Section 4 of the bill.

Also, on February 4, 2008, Nathaniel Wienecke, of the Department of Commerce, sent a letter [6 pages in PDF] to members of the SJC explaining the administration's concerns with the bill.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), and Sen. Orrin Hatch (R-UT), a senior member of the SJC, issued a joint statement on February 5, 2008.

They wrote that "A critical piece of the Patent Reform Act addresses how courts determine damages for patent infringement. Since its passage in committee, we have been working to strike the right balance to ensure patent holders obtain appropriate compensation in infringement cases. We have worked and will continue to work with the White House as the Senate prepares to consider this important legislation."

They also wrote that "we are preparing for its consideration in the Senate this month".

Dudas also stated that "we" have visited forty Senate offices in the last two weeks, and that "the reception has been good".

Dudas related that the opponents of the damages language in the version of S 1145 reported by the SJC include mainstream manufacturers, universities, biotech and pharmaceutical entities, small inventors and small businesses, and venture capitalists, who Dudas said represent small inventors and businesses.

He said that the bill should be "technology neutral". With respect to damages, he said the trial court judges must keep "the proper amount of flexibility" in instructing juries. The bill should "give the judges the discretion to look at all of the factors", and then instruct the jury as to which are the most important.

Dudas also stated that the USPTO should be "fully funded", and that the USPTO should have greater fee setting authority. He expressed support for Sen. Tom Coburn's (R-OK) amendment, which allows the USPTO to set fees, which the Congress can then reject.

On July 18, 2007, the House Judiciary Committee (HJC) amended and approved HR 1908 [LOC | WW] , also titled the "Patent Reform Act of 2007".

2/5. Rep. Bobby Rush (D-IL), the Chairman of the House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection stated in a release that the Subcommittee plans to examine and hold a hearing on mergers involving companies involved in online advertising.

Antitrust merger reviews are conducted by the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) pursuant to statute. The Federal Communications Commission (FCC) has also conducted redundant antitrust merger reviews of some transactions that involve transfers of FCC licenses since passage of the Telecommunications Act of 1996.

Antitrust matters, and oversight of the Antitrust Division's and FTC's merger review activities, fall within the jurisdiction of the House Judiciary Committee (HJC).

The HCC has a long and bipartisan record of aggressively and creatively interpreting its jurisdiction to engage in legislative and oversight activities in areas assigned to other committees.

In the cases of the Google DoubleClick merger and the possible Microsoft Yahoo merger, the HCC is asserting its jurisdiction over consumer protection and privacy to examine these mergers.

Rep. Rush (at right) stated that his Subcommittee "plans to hold a hearing on the privacy issues raised by last year's mergers in the online advertising space".

He also said that the "recent announcement by Microsoft demonstrates that consolidation of companies in the Internet advertising world will continue, irrespective of whether this specific deal materializes. The Subcommittee intends to request a confidential briefing from the appropriate Government regulators, and to schedule a hearing this Spring to explore the tough competition and consumer privacy issues that have been and will be raised by this activity".

Rep. Ed Whitfield (R-KY), the ranking Republican on the Subcommittee, stated in the same release that "Recent mergers in the search and online advertising worlds raise significant privacy concerns. I joined 11 of my Republican colleagues last fall in requesting Chairman Rush look into the privacy issues raised by the mergers of online search and online advertising firms. I am pleased Chairman Rush has committed to scheduling a hearing on these matters and I look forward to working with him as we investigate what personal information these types of companies glean from consumers' use of the internet, and how those data sets may be combined for future use."

The HCC has not yet announced a date for any merger related hearings.

On December 20, 2007, the FTC announced, after a long review, that it will not seek to block the Google DoubleClick merger. See, story titled "FTC Will Not Block Google DoubleClick Merger" in TLJ Daily E-Mail Alert No. 1,691, December 19, 2007.

The FTC wrote at the time that "some have urged the Commission to oppose Google's proposed acquisition of DoubleClick based on the theory that the combination of their respective data sets of consumer information could be exploited in a way that threatens consumers’ privacy." However, it "concluded that privacy considerations, as such, do not provide a basis to challenge this transaction."

The relevant statutory authority, Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18, prohibits acquisitions or mergers, the effect of which "may be substantially to lessen competition, or to tend to create a monopoly."

The lessening of privacy is not a statutory basis for blocking a merger.

Also, on December 12, 2007, Rep. Joe Barton (R-TX), the ranking Republican on the HCC, sent a letter to Eric Schmidt, Ch/CEO of Google, that propounded numerous written interrogatories related to the merger of Google and Doubleclick, protection of consumer privacy, and HR 964 [LOC | WW], the "SPY ACT". See, story titled "Rep. Barton Questions Google on Doubleclick Merger and Privacy" in TLJ Daily E-Mail Alert No. 1,688, December 13, 2007.

2/4. The Office of the U.S. Trade Representative (OUSTR) announced in a release [PDF] that the U.S. "will join negotiations on investment and financial services set to begin in March among Singapore, Chile, New Zealand and Brunei, known as the ``P-4´´ group of countries."

The OUSTR added that "These four countries have negotiated their own Free Trade Agreement (FTA), the Trans-Pacific Strategic Economic Partnership, based largely on the United States’ FTAs with Singapore and Chile. While the Trans-Pacific Strategic Economic Partnership Agreement entered into force in 2006, the investment and financial services chapters remain to be negotiated."

The AeA's Rob Mulligan said in a release that "Trade with countries in the Asia-Pacific region is critical to AeA member companies, as U.S. high-tech goods exports to Asia-Pacific reached $86.2 billion in 2006."

He added that "If this negotiation can lead to a broader regional agreement addressing key areas of interest to the high-tech industry such as tariff and non-tariff barriers, intellectual property protection, and e-commerce, it would provide increased access for the US high-tech industry to the rapidly growing Asia-Pacific markets."

He also stated that "it is our hope that USTR will include provisions from the Korea Free Trade Agreement (FTA) that improved upon the high-standard terms of the US-Singapore and US-Chile agreements."

Mulligan concluded that "U.S. companies do not want to be at a disadvantage relative to growing high-tech competitors from other countries moving forward with FTAs."

The U.S. Chamber of Commerce's Myron Brilliant stated in a release that "the business community hopes more countries will join in. This agreement could be a catalyst to open markets for U.S. exports across the Asia-Pacific region, which accounts for half the world economy."

2/1. Erik Sirri, Director of the Securities and Exchange Commission's (SEC) Division of Trading and Markets, gave a speech in New York in which he discussed dark pools, including dark alternative trading systems (ATSs), as well as their technologies and their implications for securities regulators.

He said that a dark pool is "a service offered by any trading venue that offers the potential to interact with liquidity beyond the venue's public quotes, if indeed the venue quotes at all".

Sirri continued that "Dark pools are solutions to a perennial trading dilemma for anyone that needs to trade in substantial size, particularly institutional investors. They provide a mechanism for such transactions to interact without displaying the full scale of their trading interest. Today, nearly every equity trading venue in the U.S. offers some sort of dark liquidity."

He noted that dark ATSs are increasing their share of trading volume.

The dark ATSs are enabled by new technologies. He said that "the use of algorithms and other sophisticated trading strategies that search out the most efficient venues for executing different types of orders has enabled large investors not merely to deal with highly active, automated markets, but to benefit from them. Some of these venues, of course, are dark ATSs, particularly those block crossing systems that have found creative ways for ``natural´´ buyers and sellers in size to find each other, while still preventing information leakage prior to actually executing the large trade. In this respect, technology has found more efficient ways to deal with the perennial trading dilemma of finding a way to trade in large size without tipping the market."

He continued with discussions of transactions, price transparency, fair competition, and best execution of investor orders.

2/1. The Federal Communications Commission (FCC) set comment deadlines for its 3rd Further Notice of Proposed Rulemaking regarding cable carriage of digital television broadcast signals. Initial comments are due by March 3. Reply comments are due by March 17. The FCC adopted this item on September 11, 2007, and released the text [68 pages in PDF] on November 30, 2007. This item is FCC 07-120 in CS Docket No. 98-120. See, story titled "FCC Adopts R&O and Further NPRM Regarding Cable Carriage of Digital Broadcast TV Signals" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. See also, notice in the Federal Register, February 1, 2008, Vol. 73, No. 22, at Pages 6099-6101. This item also includes a Third Report and Order that finalizes the material degradation requirements adopted by the FCC in 2001, and establishes two alternative approaches that cable operators may use to meet their responsibility to ensure that cable subscribers with analog television sets can continue to view all must-carry stations after the end of the DTV transition. The notice in the Federal Register describes, recites, and sets the effective date (February 3, 2008) for, rules changes in this R&O.

2/4. The Federal Trade Commission (FTC) announced that it will hold a workshop on May 6-7, 2008, titled "Beyond Voice: Mapping the Mobile Marketplace". It will address "The use of mobile-messaging services as instruments of M-commerce; Consumers’ ability to control mobile applications; The adaptation of advertising to mobile devices, including the challenges presented by small screen disclosures; M-commerce practices targeting children and teens; Industry best practices in preventing fraud, disclosing costs, and resolving billing disputes; Evolving security threats and solutions; and Next-generation products and services". February 27 is the deadline to submit requests to to be panelists. March 17 is the deadline to submit comments or original research to the FTC. The workshop will be held at the FTC Conference Center, 601 New Jersey Ave., NW. The workshop is free and open to the public. It will also be web cast. See, FTC notice.

The House will meet at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act of 2007". See, Rep. Hoyer's calendar [PDF] for week of February 4.

The Senate will meet at 9:30 AM for morning hour. It will then resume consideration of S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007".

8:00 AM - 12:00 NOON. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will meet. See, notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at Page 2458-2459. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

8:30 AM - 5:30 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will jointly host a public workshop titled "2008 International Technical Assistance Workshop: Charting the Future Course of International Technical Assistance at the U.S. Department of Justice and the Federal Trade Commission". See, notice. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 1:30 PM. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) will host a "summit on issues relating to the deployment and use of Next Generation 911 technology and the coordination of those efforts among Public Safety Answering Points, the telecommunications industry and manufacturers". See, notice [PDF] and registration page. Location: FCC, Commission Meeting Room, FCC,  445 12th St., SW.

10:00 AM. John Morris (Center for Democracy and Technology) and Adam Thierer (Progress & Freedom Foundation) will host a news briefing to discuss and release a paper on 30 pending bills aimed at promoting child safety or regulating online content in some manner. The event will also be teleconferenced. The call in number is 1-800-377-8846. The participant code is 92874158#. For more information, contact Brock Meeks at brock at cdt dot org or 202-637-9800 ext. 114. Location: CDT conference room, 11th floor, 1634 I St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in LSI Industries v. Imagepoint, a patent infringement case, App. Ct. No. 2007-1292. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in O2 Micro International v. Beyond Innovation Technologies, a patent infringement case, App. Ct. No. 2007-1302. This is an appeal from the U.S. District Court (EDTex), D.C. No. 2-04-CV-32 (TJW). See, District Court's March 21, 2007, Memorandum Opinion and Order [PDF]. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ampex v. Eastman Kodak, a patent infringement case, App. Ct. No. 2007-1089. This is an appeal from the U.S. District Court (DDel), D.C. No. 04-1373-KAJ. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Metropolitan Life v. Bancorp, App. Ct. No. 2007-1312. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The Federal Bar Association (FBA) will host an event titled "The 9/11 Act -- Overview and Authorities". The price to attend ranges from $10-$15. See, registration page. Location: Transportation Security Administration (TSA), Town Hall, 601 S. 12th St., Arlington, VA.

12:00 NOON - 2:00 PM. The New America Foundation (NAF) will host a panel discussion titled "Future of Municipal Wireless". The speakers will be Rep. Mike Doyle (D-PA), Joshua Breitbart (Ethos Wireless), Jonathan Baltuch (MRI), Aaron Kaplan (FunkFeuer), Jon Peha (Carnegie Mellon University), Richard MacKinnon (Austin Wireless City Project), and Sascha Meinrath (New America Foundation). Lunch will be served. See, notice. Location NAF, 7th floor, 1630 Connecticut Ave.,  NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Cyberspace and International Practice Committees will host an event titled "Broadband Deployment and Take-up: What Are the Experiences of Various Countries?" This event offers continuing legal education (CLE) credits. See, notice and registration page. The price to attend ranges from $25 to $135. Registrations are due by 5:00 PM on February 4. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

TIME? Day one of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board. The DOD has not disclosed the agenda. See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 173-174. Location: Pentagon, Arlington, VA.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's calendar [PDF] for week of February 4.

8:30 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting titled "The Implications of Sovereign Wealth Fund Investment on National Security". See, notice in the Federal Register, January 22, 2008, Vol. 73, No. 14, at Pages 3804-3805. Location: Room 562, Dirksen Building, Capitol Hill.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Oversight Hearing of the Department of Justice". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Gammino v. Southwestern Bell, one of several related patent infringement cases involving an algorithm for blocking international telephone calls. This appeal, App. Ct. No. 2007-1201, is from the U.S. District Court (NDTex), D.C. No. 3:2005cv00850, which entered summary judgment for Southwestern Bell (AT&T). See, 512 F.Supp.2d 626. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Avocent Huntsville v. Aten International, a patent infringement case, App. Ct. No. 2007-1553. This is an appeal from the U.S. District Court (NDAlab). Location: Courtroom 203, 717 Madison Place, NW.

TIME? Day two of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board. The DOD has not disclosed the agenda. See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 173-174. Location: Pentagon, Arlington, VA.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's calendar [PDF] for week of February 4.

11:00 AM. The House Judiciary Committee's (HJC) Task Force on Antitrust and Competition Policy will hold a hearing titled "Hearing on the State of Competition on the Internet". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. Deadline for all parties except foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making Special 301 identifications of countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, story titled "OUSTR Seeks Special 301 Comments on Countries that Deny Adequate IPR Protection" in TLJ Daily E-Mail Alert No. 1,703, January 22, 2008, and notice in the Federal Register, January 16, 2008, Vol. 73, No. 11, at Pages 2958-2959.

Deadline to submit initial comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the meaning of the Copyright Act's term "cable system", and issues related to the phantom signal phenomenon. See, notice in the Federal Register, December 12, 2007, Vol. 72, No. 238, at Pages 70529-70540, and story titled "Copyright Office Issues Notice of Inquiry Regarding Cable Systems" in TLJ Daily E-Mail Alert No. 1,688, December 13, 2007.

Deadline to submit comments to the Office of the Director of National Intelligence (ODNI) in response to its notice of proposed rulemaking regarding ODNI policies for collecting and maintaining personally identifiable records and processes for administering requests for records under the Privacy Act of 1974, which is codified at 5 U.S.C. § 552a(b). See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 113-125. These proposed rules allow for the disclosure of information to courts, government agencies, Congress, any Congressional committee or subcommittee, and a consumer reporting agency (in accordance with 31 U.S.C. § 3711(e)). These proposed rules also enumerate numerous exemptions of records systems under the Privacy Act.

Day one of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, January 11, 2008, Vol. 73, No. 8, at Page 2058. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on judicial nominations. Sen. Dianne Feinstein (D-CA) will preside. Location: Room 226, Dirksen Building.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will meet by conference call. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host an event titled "FCC Equal Employment Opportunity (EEO) Rules". This event offers continuing legal education (CLE) credits. The speakers will be Larry Walke (NAB), Lewis Pulley (FCC, Media Bureau, Policy Division), and David Honig (Minority Media and Telecommunications Council). The price to attend ranges from $25 to $135. Location: Wiley Rein, 1776 K St., NW.

TIME? The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing on DTV transformation preparedness. Location?

Day two of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, January 11, 2008, Vol. 73, No. 8, at Page 2058. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the Petition for Declaratory Ruling [33 pages in PDF] filed by the Public Knowledge (PK) and other groups on December 11, 2007, pertaining to the regulatory status of text messaging services, including short code based services sent from and received by mobile phones. The PK requests that the FCC declare that these services are governed by the anti-discrimination provisions of Title II of the Communications Act. See, story titled "Verizon Wireless and Net Neutrality Advocates Clash Over Text Messaging" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007. See also, letter from Verizon Wireless to NARAL dated September 27, 2007, and NARAL's web page titled "NARAL Pro-Choice America Wins Fight over Corporate Censorship". See also, story titled "Public Knowledge Asks FCC to Declare that Blocking and Refusing to Carry Text Messages Violates Title II" in TLJ Daily E-Mail Alert No. 1,686, December 11, 2007. This proceeding is WT Docket No. 08-7. See, notice in the Federal Register, January 28, 2008, Vol. 73, No. 18, at Pages 4866-4867.

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