4/21. The Supreme Court issued an order in Biomedical Patent Management v. California Department of Health Services. It wrote that "The Solicitor General is invited to file briefs in these cases expressing the views of the United States." See, Orders List [12 pages in PDF] at page 4.

The patent at issue, U.S. Patent No. 4,874,693, is titled "Method for assessing placental dysfunction". That is, it pertains to testing for certain pregnancy abnormalities. However, at issue in this case is the ability of states to enforce their own patents and other intellectual property rights, while as the same time evading lawsuits for their infringement of the intellectual property rights of others.

The Supreme Court held in a string of bizarre opinions ten years ago that states have sovereign immunity in intellectual property litigation, and that the Congress cannot abrogate that immunity. The cert petition in the present case addresses when that immunity might be waived.

The original opinions were all decided by a vote of 5-4. The minority has never abandoned it opposition to these rulings. It is possible that the Supreme Court could revisit its underlying opinions. Alternatively, it might only address the issue of waiver of immunity. Or, the Supreme Court might deny certiorari, in which case the opinion of the Court of Appeals (no waiver of immunity) will stand.

The Supreme Court held, 5-4, in Seminole Tribe v. Florida, 517 U.S. 44 (1996), that the Congress lacks authority under Article I of the Constitution to abrogate the States' 11th Amendment immunity from suit in federal courts. It then held, 5-4, in Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999), that the holding of Seminole Tribe extends to patent suits.

Also, the Supreme Court held, 5-4, in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), that the Trademark Remedy Clarification Act is invalid under state sovereign immunity analysis.

The 11th Amendment states that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Proceedings Below. Biomedical Patent Management Corporation (BPMC) filed a complaint in U.S. District Court (NDCal) against the state of California's Department of Health Services (DHS) alleging infringement of its Patent No. 4,874,693.

The District Court held that California is entitled to assert 11th Amendment immunity. BPMC appealed to the U.S. Court of Appeals (FedCir).

The Court of Appeals issued its opinion [PDF] on October 23, 2007. It wrote that "The issue presented in this appeal is whether a State is entitled to assert its sovereign immunity under the Eleventh Amendment where the State intervened in an earlier, related action that was dismissed for improper venue. The district court concluded that a State was entitled to assert its Eleventh Amendment sovereign immunity in those circumstances and, accordingly, granted a motion to dismiss on that ground filed by" the California's Department of Heath Services.

The Court of Appeals, citing the Supreme Court's 1999 opinion in Florida Prepaid, affirmed.

Petition for Writ of Certiorari. BPMC filed a petition for writ of certiorari with the Supreme Court. Review by the Supreme Court is discretionary, and the Supreme Court has not yet decided whether or not to hear the case. However, that the Supreme Court has requested a brief from the Department of Justice's (DOJ) Office of the Solicitor General suggests that there is interest in the case.

BPMC wrote in its petition for writ of certiorari [156 pages in PDF] that the questions presented are:

"1. Whether a state’s waiver of Eleventh Amendment immunity in one action extends to a subsequent action involving the same parties and the same underlying transaction or occurrence.
2. Whether a state waives its Eleventh Amendment immunity in patent actions by regularly and voluntarily invoking federal jurisdiction to enforce its own patent rights."

BPMC argued that "States are major players in the patent market. Many of the largest universities and research institutions are state-owned, and their inventions increasingly contribute substantial revenues to the state fisc. In recent years, states have increasingly turned to the federal courts to maximize the value of their patent portfolios; through aggressive litigation, states have won judgments and settlement awards in the hundreds of millions of dollars."

It continued that "While they embrace federal jurisdiction when it helps them to enhance their patent revenue streams, states simultaneously avoid federal jurisdiction when they themselves are faced with claims of patent infringement; in those circumstances, they assert sovereign immunity under the Eleventh Amendment."

It added that "This case concerns the scope of waiver by litigation conduct. Here, California voluntarily invoked federal jurisdiction to determine whether it was liable to BPMC for infringing a patent, thereby waiving its sovereign immunity. That case, however, was filed in an improper venue and was ultimately dismissed. When the case was refiled -- to resolve precisely the same dispute as to the same patent between the same parties -- California claimed immunity."

It asked the Supreme Court to grant certiorari, reverse the Court of Appeals, and hold that California waived sovereign immunity.

SIIA Amicus Brief. The Software and Information Industry Association (SIIA) and the U.S. Chamber of Commerce submitted a joint amicus curiae brief [27 pages in PDF] to the Supreme Court urging it to grant certiorari.

They wrote that their members "hold numerous patents and copyrights. Those members sometimes are sued by the States for infringement, and are in regular negotiations for licensing and use of intellectual property, but find themselves unable to enforce their own rights fully and meanignfully against state entities, which invoke sovereign immunity. They have first-hand experience with the devastating impact that claims of sovereign immunity can have on licensing negotiations and other efforts to enforce property rights." (Meaningfully misspelled in original.)

They wrote the Court of Appeals' opinion "creates an obvious and inordinate imbalance. State institutions own myriad patents. In 2006, the University of California alone was awarded more patents than Pfizer, Merck, and SmithKline Beecham combined. Under the decision below, however, States and state entities can vigorously enforce such patent and intellectual property rights in federal court, at the same time rejecting federal court jurisdiction whenever others seek to enforce their intellectual property rights against the State."

"Perhaps worse still, businesses that are concerned about being victims of a State’s infringement suit cannot seek declaratory judgments to determine the legality of their conduct, because any such suit will be met with a claim of sovereign immunity." The SIIA and Chamber continued, "They thus are forced either to undertake the potentially infringing conduct and confront possibly ruinous liability, or steer well clear of the ``zone´´ of the State's patent even if a claim of infringement (or the patent's validity) would be debatable. The in terrorem effect of even a marginal suit by the state entity -- and the absence of any way to get a declaration of rights in advance -- permits the State to assert an overly expansive construction of its patent to deter competition without fear of challenge." (Parentheses in original. Italics in original.)

States Rights. Florida Prepaid and College Savings Bank represent a blind and bizarre application of a states rights constitutional philosophy to intellectual property rights.

There is a group of states rights advocates on the Supreme Court who owe their appointments, in part, to the judicial politics of school prayer, abortion, capital punishment, busing, and other non-economic issues. Social conservatives have long sought the appointment of Justices with judicial ideologies that include support for states rights. They do so with the expectation that these Justices will render opinions to their liking on these social issues.

Yet, with no pressure from social conservatives, no rationale grounded in the "Authors and Inventors" clause, and no policy rationale, these Justices delivered a wholly unanticipated string of states rights rulings in the area of intellectual property.

States that develop and exploit, or simply steal, intellectual property have received a financial windfall from these opinions, and now work to block any legislation that would have the effect of restoring intellectual property rights. The state of California, the defendant in this case, is one of the most egregious violators.

There were efforts in prior Congresses to address state abuse of 11th Amendment immunity in intellectual property cases. See, stories titled "Legislators Introduce Bills to Address Infringement by States" in TLJ Daily E-Mail Alert No. 302, November 6, 2001; "Sen. Leahy Reintroduces Bill to Close 11th Amendment Loophole to IPR" in TLJ Daily E-Mail Alert No. 394, March 22, 2002; "Senate Judiciary Committee Considers Federalism and Intellectual Property" in TLJ Daily E-Mail Alert No. 522, October 3, 2002; and "Legislators Re-Introduce Bills to Address State IPR Sovereign Immunity" in TLJ Daily E-Mail Alert No. 680, June 13, 2003.

However, legislative efforts were blocked by Sen. Dianne Feinstein (D-CA), and others. Sen. Feinstein is a senior member of the Senate Judiciary Committee (SJC), which has jurisdiction over these bills.

Central Virginia Community College v. Katz. The present case, Florida Prepaid, and College Savings Bank all involve intellectual property and the 11th Amendment.

In 2006 the Supreme Court decided an 11th Amendment case involving the Bankruptcy Code's treatment of preferential transfers by a debtor to state entities. See, January 23, 2006, opinion [60 pages in PDF] in Central Virginia Community College v. Katz, 546 U.S. 356.

The Supreme Court held, 5-4, that the Congress can abrogate state sovereign immunity in the Bankruptcy Code. See, story titled "Supreme Court Rules in State Sovereign Immunity Case" in TLJ Daily E-Mail Alert No. 1,295, January 24, 2006. See also, story titled "Supreme Court Grants Certiorari in State Sovereign Immunity Case" in TLJ Daily E-Mail Alert No. 1,109, April 5, 2005.

Justice Thomas wrote in his dissent, bluntly and correctly, that the majority opinion is "impossible to square with this Court's settled state sovereign immunity jurisprudence".

Katz and Seminole Tribe and its progeny cannot be reconciled.

That is, Article 1, Section 8, Clause 4, of the Constitution provides that "The Congress shall have the Power ... To establish ... uniform Laws on the subject of Bankruptcies throughout the United States". The Supreme Court held in Katz that this clause gives the Congress authority to abrogate state sovereign immunity from suits to set aside preferential transfers.

However, it is also Article 1, Section 8, that provides that "The Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes" and "To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

Yet, the Supreme Court held in Seminole Tribe and Florida Prepaid these clauses, enumerated in the same Article I, Section 8, do not give the Congress authority to abrogate state sovereign immunity in those areas of law.

The argument can be made that Katz cannot be reconciled with Florida Prepaid, unless it be by the explanation that the Supreme Court has determined to apply inconsistent interpretations of 11th Amendment immunity in the contexts of bankruptcy and intellectual property law.

One might predict that the Supreme Court will eventually address this inconsistency. Hypothetically, if the Supreme Court were to grant certiorari in the present case, it could retreat from Seminole Tribe and Florida Prepaid. Second, it could retreat from Katz. Third, the Supreme Court could leave both Katz and Florida Prepaid in place. That is, it might take the case solely to address the issue of waiver of immunity in patent cases, and not to resolve the inconsistency between Katz and the earlier cases.

The BPMC's petition for writ of certiorari does not raise the argument the Katz implicitly overturned Florida Prepaid. However, BPMC made this argument in both the District Court and Court of Appeals. The Court of Appeals rejected it in a single paragraph. The petition for writ of certiorari discusses Katz, but only in a single footnote, and only for a different purpose.

Supreme Court Voting Record. Seminole Tribe, Florida Prepaid and College Savings Bank, which were decided in 1996 and 1999, were all 5-4 cases. In the first two cases, former Justice Rehnquist wrote for the majority, and was joined by Scalia, Thomas, Kennedy, and O'Connor. In the third, Scalia wrote the opinion. The four dissenters in all three cases were Stevens, Souter, Breyer, and Ginsburg.

In Katz, Rehnquist was no longer on the Court. Roberts had just taken his place. In Katz, the states rights position lost, 4-5. Roberts, like Rehnquist before him, voted with the states rights block. However, O'Connor switched sides, and voted against states rights, thereby shifting the majority. She wrote no opinion to explain her shift. Also, immediately thereafter, she left the Court, and was replaced by Alito.

There would appear to be a solid block of four Justices who have never bought into Seminole Tribe and its progeny. The doctrine of stare decisis has done nothing the dampen their opposition. This block is Stevens, Souter, Ginsburg and Breyer.

This block could serve as the basis for voting to grant certiorari in the present case.

In contrast, there appears to be a solid block of three states rights Justices who have always backed the Seminole Tribe interpretation. This block is Scalia, Thomas, and Kennedy.

In addition, there is Roberts, who was not on the Court for the early opinions, but joined the states rights block in Katz. One might speculate that he would continue to vote with the states rights block. Also, there is Alito, who joined the Court after Katz. His opinions as a Judge of the 3rd Circuit, his confirmation hearing, and his selection by President Bush, suggest that he might join the states rights block. This would leave the states rights block with a continuing 5-4 majority.

Case Information. This case is Biomedical Patent Management Corporation v. California Department of Health Services, Sup Ct. No. 07-956, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2006-1515. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of California, Judge Marilyn Patel presiding. Judge Kathleen O'Malley wrote the opinion for the Court of Appeals, in which Judges Randall Rader and Arthur Gajarsa joined. Judge O'Malley is a Judge of the U.S. District Court for the Northern District of Ohio who sat by designation. See also, Supreme Court docket.

4/21. The U.S. Court of Appeals (9thCir) issued its opinion [15 pages in PDF] in Seven Up Pete Venture v. Schweitzer, an 11th Amendment immunity case.

Seven Up Pete Venture (SUPV) and other plaintiffs hold gold and silver mining leases in the state of Montana. Montana enacted by initiative a statute that banned certain mining practices.

SUPV and others filed a complaint in U.S. District Court (DMont) against Barry Schweitzer, in his capacity as Governor of Montana, alleging an uncompensated regulatory taking under the 5th and 14th Amendments of the Constitution. The District Court dismissed the complaint.

SUPV and others brought this appeal. The Court of Appeals affirmed. It held that "the Eleventh Amendment bars a reverse condemnation action brought in federal court against state officers in their official capacities".

The Court of Appeals left open the possibility that SUPV could sue the state in state court for violation of its federal constitutional rights.

The Court of Appeals relied upon the Supreme Court's 1996 opinion in Seminole Tribe v. Florida, 517 U.S. 44 (1996). In Seminole Tribe and its progeny the Supreme Court held that states have sovereign immunity when plaintiffs bring actions in federal courts against states asserting rights created by federal statutes. The 11th Amendment is in the Constitution and is thus superior to statutory rights.

However, in the present case, the plaintiffs went to federal court to assert a Constitutional claim. Nevertheless, the Court of Appeals opined that this does not alter "conventional application of the Eleventh Amendment".

Moreover, the present opinion has the effect of substantially degrading rights under the 5th Amendment's takings clause. It is state governments, and their subdivisions, that engage in condemnations of real property.

Seminole Tribe and its intellectual property progeny, Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), preclude intellectual property owners from bringing infringement actions against states when states infringe their patents, copyrights, or trademarks. Moreover, in patent and copyright actions there is no right of action in state courts. Hence, sovereign immunity in federal court precludes all enforcement of intellectual property rights against states.

Perhaps the holdings of these cases, when combined with the holding of the present case, support the proposition that if states were to seize or condemn intellectual property, they could not then be sued for that either, because of state sovereign immunity.

This case is Seven Up Pete Venture, et al. v. Barry Schweitzer, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-35384, an appeal from the U.S. District Court for the District of Montana, D.C. No. CV-00-00013-CCL, Judge Charles Lovell presiding. Judge William Canby wrote the opinion of the Court of Appeals, in which Judges Susan Graber and Ronald Gould joined.

4/22. The Senate Judiciary Committee (SJC) has scheduled a hearing on the nomination of Judge Steven Agee to be a Judge of the U.S. Court of Appeals (4thCir). The hearing will be on Thursday, May 1, 2008, at 10:00 AM.

The 4th Circuit hears a disproportionate number of cases in technology related areas of law, in part because of the technology companies situated in northern Virginia.

Agee is currently a Judge of the Supreme Court of Virginia.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, issued a release in which he offered his interpretation of what has transpired. "After withdrawing the nomination of Duncan Getchell in January, last month the President nominated Steven Agee to a Virginia vacancy on the Fourth Circuit. Unlike previous nominees, Agee has the bipartisan support of Virginia’s Senators, one a Republican and one a Democrat."

Sen. Leahy also wrote that "In 2003, the President nominated Jim Haynes to fill a Virginia seat on the appeals court in the Fourth Circuit. That nomination of the general counsel of the Defense Department, who oversaw the creation and approval of detention and interrogation policies and practices that remained cloaked in secrecy and have led to international scorn, met with bipartisan objections. It was ultimately returned to the President and not re-nominated. Despite earlier recommendations from Virginia Senators John Warner (R) and Jim Webb (D), the President last year then nominated Duncan Getchell. After public opposition from Warner and Webb, Getchell’s nomination was also withdrawn."

Yet, in March President Bush nominated Agee for the seat vacated by former Judge Michael Luttig. See, White House release. Luttig was appointed by the first President Bush, and was long considered by Republicans to be a leading candidate for appointment to the Supreme Court in any Republican administration. However, President Bush passed over Luttig when he appointed Sam Alito and John Roberts in 2005. Luttig then resigned, and took his current position as General Counsel of the Boeing Company.

Sen. Leahy also wrote that "After years of delay, the President has finally heeded the advice of Senator Warner and Senator Webb, and the Committee is moving forward in its consideration of this circuit court nominee".

Finally, he wrote that "Like the progress made last week in breaking a long-standing impasse in the Sixth Circuit, the Agee nomination breaks the gridlock on the Fourth Circuit. We are taking another step to further reduce judicial vacancies. Circuit court vacancies have already been reduced to the lowest level in more than a decade."

See also, story titled "President Bush and Senate Democrats Reach Compromise on 6th Circuit Nominees" in TLJ Daily E-Mail Alert No. 1,747, April 15, 2008.

Article II of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court, and all other officers of the United States ..."

Article III provides that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Long after the drafting of the Constitution, the Congress settled on the current three tier judiciary, with District Courts as trial courts, the Courts of Appeals as intermediate appellate courts, and the Supreme Court.

Presidents and Senates have developed customs regarding the advice and consent process. While there has been considerable debate and give and take between branches of government, political parties, and outside interests, the Senate has exercised considerable control over the selection of District Court Judges, while the President has exercised greater control over the selection of Court of Appeals Judges.

The recent disposition of vacancies on the 6th and 4th Circuits may reflect not only partisan victories for Democrats in a Senate with a new Democratic majority. It may also reflect a successful assertion of greater Senatorial power at the expense of Presidential power.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. The agenda for the week also includes consideration of HR 5819 [LOC | WW], the "SBIR/STTR Reauthorization Act", subject to a rule. See, Rep. Hoyer's schedule for the week of April 21.

Day three of a three day conference hosted by the Wireless Communications Association (WCAI). On April 23 at 9:45 AM, there will be a panel titled "Next Steps For Migrating The Communications Industry To Green Technology". At 10:30 AM, Rep. Rick Boucher (D-VA) will give a speech titled "Green Technology". At 11:00 AM, there will be a panel on flexible use bands; the speakers will include Julius Knapp (Chief, FCC's Office of Engineering and Technology). At 11:30 AM, there will be a panel titled "Can WiMAX Carriers Meet FCC E911 VoIP Device Regs". At 1:30 PM, there will be a panel titled "FCC Leadership Roundtable"; the speakers will be Bryan Tramont (Wilkinson Barker Knauer), Bruce Gottlieb (office of FCC Commissioner Michael Copps), Renée Crittendon (office of FCC Commissioner Jonathan Adelstein), Fred Campbell (Chief of the FCC's Wireless Telecommunications Bureau), and Wayne Leighton (office of FCC Commissioner Deborah Tate). At 2:30 PM, there will be a panel titled "Whither Muni Wi-Fi In Philadelphia's Wake?"; the speakers will be Rob Pegoraro (Washington Post), Weston Vivian, Sascha Meinrath (New America Foundation), and Eric Dentler (Cisco). At 3:30 PM, there will be a panel titled "Introducing LTE As 3G's Evolution Path To 4G". At 4:15 PM, there will be a panel titled "Evaluating Spectrum Options For New Entrants". See, agenda.Location: Grand Hyatt, 1000 H St., NW.

9:00 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda for April 23, 2008, includes "Atomic Layer Deposition and Cluster Tools" (ALD) and "Equipment Performing Analog-to-Digital Conversions". See, notice in the Federal Register, April 8, 2008, Vol. 73, No. 68, at Pages 19049-19050. This notice does define or explain "Atomic Layer Deposition" (ALD). It is a chemical process for creating thin layers of film, as thin as one atom, on, among other things, semiconductors. Nor does the notice discuss uses of ALD by Intel, AMD, or other semiconductor manufacturers. See, Intel paper that references ALD. Location: Room 3884, DOC, 14th St. between Constitution and Pennsylvania Ave., NW.

RESCHEDULED FROM APRIL 16. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "National Security Letters: The Need for Greater Accountability and Oversight". The witnesses will be James Baker (former Counsel for Intelligence Policy, Department of Justice), Gregory Nojeim (Center for Democracy and Technology), and Michael Woods (former Chief, National Security Law Unit, Office of the General Counsel, FBI). Location: Room 226, Dirksen Building.

10:30 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Oversight Hearing on the Federal Bureau of Investigation". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON. The Cato Institute will host a book event. The speakers will be Eric Lichtblau, author of Bush’s Law: The Remaking of American Justice [Amazon], and Timothy Lynch (Cato). On December 16, 2005, the New York Times published a story by James Risen and Lichtblau titled "Bush Lets U.S. Spy on Callers Without Courts", which disclosed a federal surveillance operation involving warrantless intercepts. See also, story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005. Lunch will be served after the program. And see, NYT's listing of articles by Lichtblau. See, notice and registration page. This event will be webcast by Cato. Location: Cato, 1000 Pennsylvania Ave., NW.

DATE AND TIME CHANGE. 2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Phantom Traffic". The SCC notice states that this hearing "will examine concerns regarding traffic over telephone networks that is sent without identifying information used for intercarrier billing purposes". Location Room 253, Russell Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications and Privacy and Data Security Committees will host an event titled "Issues Arising When Privacy and National Security Concerns Collide". The event qualifies for continuing legal education (CLE) credits. Prices vary. See, notice and registration page. Registrations and cancellations are due by 5:00 PM on April 21. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

Day three of a three day conference hosted by the Wireless Communications Association International (WCAI) titled "WCAI 2008: Capitalizing on the 4G/WiMax Eco-System". Location: Grand Hyatt Hotel, 1000 H St., NW.

The House will meet at 10:00 AM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for the week of April 21.

Day one of a three day conference of the National Conference of State Legislature titled "Spring Forum". At 1:15 PM, there will be a panel titled "REAL ID: Final Rules ... State Responses". The speakers will include Kathleen Kraninger, Deputy Assistant Secretary for Policy at the Department of Homeland Security. At 2:30 PM there will be a panel titled "Open Government: Transparency Online". At 2:45 PM there will be a panel titled "State Leadership on Health Information Technology". Location: Capital Hill Hyatt Regency, 400 New Jersey Ave., NW.

9:00 AM - 2:00 PM. The Institute for Policy Innovation (IPI) will host an event titled "IPI's Third Annual World Intellectual Property Day Event". The first panel is titled "Digital Technologies: Emerging Challenges, Evolving Strategies"; the speakers will be Solveig Singleton (IPI), Mitch Bainwol (RIAA), Dan Glickman (MPAA), and Steve Largent (CTIA). The second panel is titled "Social and Economic Benefits of IP: Who Wins? Who Loses?"; the speakers will be Susan Finston (IPI), Lien Verbauwhede Koglin (WIPO), Michael Gollin (Venable law firm), and Mohit Mehrotra (Excel Life Sciences). The third panel is titled "The Intellectual Property Marketplace: The Role of IP Valuation and Tech Transfer"; the speakers will be Bartlett Cleland (IPI), Usha Balakrishnan (Collaborative Social Responsibility Solutions), Abha Divine (Techquity), and Robert Cresanti (Ocean Tomo). The fourth panel is titled "Combating (Dangerous) Counterfeits: How Countries are Policing their Borders"; the speakers will be Chris Israel (IPI), Mike DuBose (Chief, Computer Crime & Intellectual Property Section, Department of Justice), Nick Smith (Immigration and Customs Enforcement), and Dave Walters (Cisco). This event is free. Lunch will be provided. RSVP to Erin Humiston at 972-874-5139 or erin at ipi dot org. Location: 5th floor, Reserve Officer Association, 1 Constitution Ave., NE.

9:00 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The April 24, 2008, meeting is closed, and its agenda is undisclosed. See, notice in the Federal Register, April 8, 2008, Vol. 73, No. 68, at Pages 19049-19050. Location: Room 3884, DOC, 14th St. between Constitution and Pennsylvania Ave., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold an executive session. The agenda includes consideration of SJRes 28, S 2607 [LOC | WW], and S 2507 [LOC | WW]. SJRes 28 provides "That Congress disapproves the rule submitted by the Federal Communications Commission relating to broadcast media ownership (Report and Order FCC 07-216), received by Congress on February 22, 2008, and such rule shall have no force or effect." S 2607 amends Section 3009 of the "Deficit Reduction Act of 2005", which pertains to low power television and translators. S 2507 is the "DTV Border Fix Act of 2007". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 2533 [LOC | WW], the "State Secrets Protection Act". The agenda also includes consideration of three judicial nominees: Mark Davis (U.S. District Court for the Eastern District of Virginia), David Kays (U.S.D.C., Western District of Missouri), and Stephen Limbaugh, (U.S.D.C., Eastern District of Missouri). The SJC rarely follows its published agendas. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing titled "Turmoil in U.S. Credit Markets: Examining the U.S. Regulatory Framework for Assessing Sovereign Investments". The witnesses will be Scott Alvarez (Federal Reserve Board General Counsel), Ethiopis Tafara (SEC), David Marchik (Carlyle Group), and Jeanne Archibald (Hogan & Hartson). See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet by conference call to prepare advice on submission of contributions to ITU-T SG16. (This is the International Telecommunication Union's Telecommunication Standardization Sector (ITU-T) Technical Study Group Sixteen (Multimedia terminals, systems and applications).) See, notice in the Federal Register, February 28, 2008, Vol. 73, No. 40, at Page 10854. To participate, call 1-210-839-8500 or 1-888-455-9640. The passcode is 52902.

12:00 NOON - 6:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Engineering Advisory Committee. See, notice in the Federal Register, April 2, 2008, Vol. 73, No. 64, at Page 18007. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

12:00 NOON - 1:30 PM. The National Economists Club will host a lunch titled "Strings Attached? The Economics and Politics of Sovereign Wealth Funds". The speaker will be Tim Adams (Lindsey Group, and former Under Secretary of Treasury for International Affairs). Location: Chinatown Garden Restaurant, 2nd floor, 618 H St., NW.

1:00 - 2:30 PM. The House Intelligence Committee will hold a closed hearing titled "Cyber". See, notice. Location: Room H-405, Capitol Building.

2:00 PM. The Senate Homeland Security and Government Affairs's (SHSGA) Subcommittee on Oversight of Government Management will hold a hearing titled "Beyond Control: Reforming Export Licensing Agencies for National Security and Economic Interests". See, notice. Location: Room 342, Dirksen Building.

2:30 PM. The Senate Commerce Committee's (SCC) Subcommittee on Science, Technology, and Innovation will hold a hearing titled "National Nanotechnology Initiative: Charting the Course for Reauthorization". See, notice. Location: Room 253, Russell Building.

TIME?. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet. The agenda may include advice for the U.S. government on the ITU World Telecommunication Standardization Assembly 2008 (WTSA 08), meetings of the Telecommunication Sector Advisory Group (TSAG), and group meetings on the International Telecommunication Regulations, cybersecurity, and other subjects. See, notice in the Federal Register, February 28, 2008, Vol. 73, No. 40, at Page 10854. Location?

Deadline to submit nominations for two positions on the Federal Communications Commission's (FCC) Universal Service Administrative Company's (USAC) Board of Directors. See, FCC notice.

Rep. Hoyer's schedule for the week of April 21 states that "no votes are expected in the House".

Day one of a three day conference of the National Conference of State Legislature titled "Spring Forum". At 11:00 AM there will be a panel titled "Communications Tax Issues". Location: Capital Hill Hyatt Regency, 400 New Jersey Ave., NW.

8:00 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Engineering Advisory Committee. See, notice in the Federal Register, April 2, 2008, Vol. 73, No. 64, at Page 18007. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making (NPRM) regarding a broadcast television substitution in Riverside, California. See, notice in the Federal Register, March 11, 2008, Vol. 73, No. 48, at Pages 12928-12929.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for its Auction 78, the AWS-1 and Broadband PCS auction, which is scheduled to commence on July 29, 2008. See, DA 08-767 and notice in the Federal Register, April 16, 2008, Vol. 73, No. 74, at Pages 20664-20672.

12:00 NOON - 2:00 PM. The Free State Foundation (FSF) will host a program titled "Reforming Universal Service: What Should Be Done And How To Do It". The speakers will be James Assey (National Cable & Telecommunications Association), Shirley Bloomfield (Qwest), Joel Lubin (AT&T), Randolph May (FSF), John Rose (OPASTCO), Mark Rubin (Alltel), Colin Crowell (House Commerce Committee, Democratic staff), and Neil Fried (House Commerce Committee, Republican staff). RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org The event is free. Lunch will be provided. Location: Room 2322, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host panel discussion titled "Merger Control in the Americas". The speakers will be John Taladay (Howrey), Eduardo Perez Motta (Chairman, Federal Commission on Competition, Mexico), Elizabeth Farina (President, Brazilian Competition Council), and Maria Tineo (Counsel for International Antitrust, Federal Trade Commission). The price to attend ranges from $15 to $30. For more information, contact 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

EXTENDED FROM MARCH 14. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Report on Broadcast Localism and Notice of Proposed Rulemaking. The FCC adopted this item on December 18, 2007, and released the text on January 24, 2008. It is FCC 07-218 in MB Docket No. 04-233. See, notice in the Federal Register, February 13, 2008, Vol. 73, No. 30, at Pages 8255-8259. See also, FCC's Public Notice [PDF] (DA 08-393). See also, Public Notice [PDF] (DA 08-515) extending deadlines.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding SP 800-64 Rev. 2 [60 pages in PDF], titled "DRAFT Security Considerations in the System Development Life Cycle".

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a lunch titled "700 MHz ``D Block´´: What's Next?" The speakers will be Declan Ganley (Ch/CEO of Rivada Networks), Kenneth Ferree (PFF), Art Contreras (Mobile Future), Michael Calabrese (New America Foundation), Paul Glenchur (Stanford Washington Research Group). This event is free and open to the public. See, PFF notice and registration page. Location: Rotunda Room, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Trademark Rules of Practice to provide that the procedures for filing trademark correspondence by Express Mail or under a certificate of mailing or transmission do not apply to certain specified documents for which an electronic form is available in the Trademark Electronic Application System (TEAS). See, notice in the Federal Register, February 29, 2008, Vol. 73, No. 41, at Pages 11079-11081.

9:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Secret Law and the Threat to Democratic and Accountable Government". It will address legal analysis withheld from the public, including memoranda of the Department of Justice's (DOJ) Office of Legal Counsel (OLC). Sen. Russ Feingold (D-WI) will preside. Location: Room 226, Dirksen Building.

9:00 AM - 4:00 PM. Day one of a two day meeting of the National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA). See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19903-19904. Location: 700 Pennsylvania Ave., NW.

12:30 - 2:00 PM. The DC Bar Association will host a presentation titled "U.S. Copyright Office's New Electronic Filing Procedure for the Registration of Copyrights". The speaker will be Jeffrey Cole of the Copyright Office. The price to attend ranges from $20 to $25. For more information, contact 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:30 - 3:30 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee will meet. The agenda includes receiving recommendations and reports from working groups of its Technical Sharing Efficiencies Subcommittee and Operational Sharing Efficiencies Subcommittee. See, NTIA notice and notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Pages 19828-19829. Location: Room 1412, DOC, 1401 Constitution Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making regarding public safety communications in the 800 MHz band. The FCC adopted and released this item on March 5, 2008. This item is FCC 08-73 in WT Docket No. 02-55 and ET Docket Nos. 00-258 and 95-18. See, notice in the Federal Register, March 31, 2008, Vol. 73, No. 62, at Pages 16822-16826.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding SP 800-39 [67 pages in PDF], titled "DRAFT Managing Risk from Information Systems: An Organizational Perspective".

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