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February 25, 2009, Alert No. 1,904.
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Obama and Aso Agree on Need to Resist Protectionism

2/24. President Obama met at the White House in Washington DC with Taro Aso, the Prime Minister of Japan. The White House news office released a statement that says that "They agreed fully on the need to resist protectionism."

This was the first visit by a foreign dignitary to the White House in the Obama administration.

The statement also disclosed that "President Obama today held in-depth consultations with the Prime Minister of Japan on the global economic crisis and other areas for bilateral cooperation. The President underscored his firm commitment to the U.S.-Japan Alliance and called for continued progress in modernizing the Alliance by implementing the joint realignment initiative."

See also, statements prior to meeting.

President Obama also signed into law HR 1 [LOC | WW], which contains a protectionist clause that may incite reciprocal protectionism from other countries. See, story titled "Spending Bill Includes Smoot Hawley Provision" in TLJ Daily E-Mail Alert No. 1,899, February 13, 2009.

President Obama also gave a speech on February 24, 2009, in which he made vague statements about possible future protectionist policies. See, following story, titled "Obama Gives Speech to Congress".

Obama Gives Speech to Congress

2/24. President Obama gave a speech to a joint session of the House and Senate. He said very little that relates to information technology (IT) or communications.

He mentioned "broadband", but only in stating that the just enacted HR 1 [LOC | WW] provides federal funding for "laying broadband".

He mentioned "cyber threats", but only in passing. He said that "To meet the challenges of the 21st century -- from terrorism to nuclear proliferation; from pandemic disease to cyber threats to crushing poverty -- we will strengthen old alliances, forge new ones, and use all elements of our national power."

He mentioned health sector IT, but only in passing. He said that his plan is to "invest in electronic health records and new technology that will reduce errors, bring down costs, ensure privacy, and save lives".

He discussed regulation, but only in the vaguest of terms. He said that "Regulations were gutted for the sake of a quick profit at the expense of a healthy market", and that "I ask Congress to move quickly on legislation that will finally reform our outdated regulatory system".

He made numerous statements about technologies other than IT, and particularly about energy technologies. However, he also made a statement about past advances in "technology". He said that "a twilight struggle for freedom led to a nation of highways, an American on the moon, and an explosion of technology that still shapes our world. In each case, government didn't supplant private enterprise; it catalyzed private enterprise. It created the conditions for thousands of entrepreneurs and new businesses to adapt and to thrive."

He also said that his plan includes making "the largest investment in basic research funding in American history -- an investment that will spur not only new discoveries in energy, but breakthroughs in medicine, science, and technology."

Obama did not advocate the approval of any concluded free trade agreements (FTAs). Nor did he advocate negotiating any new FTAs.

He asserted that "we are working with the nations of the G-20 to ... avoid the possibility of escalating protectionism".

He made several statements directed to Americans with protectionist attitudes. He lamented that hybrid cars made in the U.S. "will run on batteries made in Korea."

He complained that U.S. "corporations ship jobs overseas". And, he said that the tax code should be revised to end "the tax breaks for corporations that ship our jobs overseas".

He did not provide a definition of "corporations that ship jobs overseas". However, it may be companies that react to the implementation of proposals to impose CO2 limits, proposals to reform regulation, proposals to promote workforce unionization, and other pending proposals.

President Obama did not reference the research and development tax credit. He did not reference reform of patent law. He did not mention telecom or internet regulation.

Rep. Bart Gordon (D-TN), Chairman of the House Science Committee (HSC), responded to Obama's speech in a release. He said that "The path to create jobs and rebuild our economy is ... through the technological advances that will give our manufacturers the edge, and through the improvements in education that will ensure we have a workforce prepared to step into 21st century jobs".

Sen. Charles Grassley (R-IA), stated in a release that "economic stimulus bill" was "more about special-interest spending than economic stimulus". He added that "there's danger that the excesses of Washington will match, or even out-do, the excesses of Wall Street".

Sen. Leahy Seeks Review of Warrantless Wiretaps and Other Anti-Terror Activities

2/25. The Senate Judiciary Committee (SJC) announced that it will hold a hearing on March 4, 2009, titled "Getting to the Truth Through a Nonpartisan Commission of Inquiry".

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, released a statement regarding this process. He described a retrospective examination of Presidential, armed forces, and executive branch actions during the Bush administration, with a "focus primarily on the subjects of national security and executive power in the government's counterterrorism effort".

One of the actions that Sen. Leahy referenced was "warrantless wiretaps".

This is part of a larger political debate. That is, Republicans and defenders of the Bush administration argue that the Bush administration's actions were successful in preventing any further terrorists attacks in the U.S. after September 11, 2001, and in degrading the capacity of terrorists around the world. Sen. Leahy, and others who seek a retrospective review, seek to cast anti-terrorist actions during the Bush administration in an unfavorable light.

Sen. Leahy asserted that "I am not interested in a commission of inquiry comprised of partisans, intent on advancing partisan conclusions". Republicans have described this as a proposal to engage in partisan retaliation. See, for example, February 12, 2009, statement of Rep. Lamar Smith (R-TX), ranking Republican on the House Judiciary Committee (HJC).

ABA Section Submits Views on Inequitable Conduct

2/18. Gordon Arnold, Chairman of the American Bar Association's (ABA) Section of Intellectual Property Law (SIPL), sent a letter [2 pages in PDF] on behalf of the SIPL to Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) regarding inequitable conduct in proceedings in the U.S. Patent and Trademark Office (USPTO).

The SIPL opposes proposals that would eliminate the defense of inequitable conduct in court proceedings and substitute administrative proceedings in the USPTO.

Rather, the SIPL advocates that the defense should remain, but "should be predicated on principles of common law fraud".

The SIPL elaborates that there must be proof, upon "clear and convincing" evidence "(1) that a person having a duty of candor and good faith to the PTO in connection with the patent or an application therefor knowingly and willfully misrepresented a material fact or material information to the PTO or omitted a known material fact or known material information from the PTO; (2) that, in the absence of such misrepresentation or omission, the PTO, acting reasonably, would not have granted or maintained in force at least one invalid patent claim; and (3) that the misrepresentation or omission occurred with a specific intent to deceive the PTO, and that such intent cannot be established by the mere materiality of the misrepresentation or omission."

Sen. Leahy and Sen. Specter are the Chairman and ranking Republican on the Senate Judiciary Committee (SJC). They have long been working on patent reform legislation. However, neither has yet introduced a patent reform bill in the 111th Congress.

Property Rights Alliance Argues that IPR Protection is Linked to Higher GDP Per Capita

2/24. The Property Rights Alliance (PRA) released a report titled "International Property Rights Index: 2009 Report". The author, Anne Dedigama, spoke at an event in Washington DC on February 24, 2009.

This report contains a scoring of 115 countries on the extent to which they protect property rights, including intellectual property rights.

The report also contains rankings of nations. Germany ranks highest on the IPR score. The U.S. is tied for second with Finland, Netherlands and Denmark.

The PRA created an overall score, with higher scores indicating higher levels of protection. It also created scores on three components: legal and political environment, physical property rights, and intellectual property rights (IPR).

The IPR score is based on three components: (1) protection of IPR data reported in the World Economic Forum's (WEF) 2007-2008 Global Competitiveness Report, (2) patent protection data from Ginarte-Park Index of Patent Rights (2005), and (3) copyright piracy data reported by the Office of the U.S. Trade Representative (OUSTR). The USTR's data, in turn, comes from groups such as the Business Software Alliance (BSA) and Motion Picture Association of America (MPAA).

Dedigama stated that protection of property rights is linked to both economic growth and gross domestic product (GDP) per capita.

Patrick Ross, head of the Copyright Alliance, also spoke at the February 24 event. He focused on the PRA report's statistical analysis of the relationship between GDP per capita and the report's IPR score.

The report contains some results of a bivariate regression model with GDP per capita as the dependent variable and IPR protection as the independent variable. The regression coefficient is positive, large, and statistically significant.

The report also contains a scatter plot in which the correlation between GDP per capita and IPR protection is visible. Some of the outliers are oil rich Arab states with small populations, and hence, very high GDP per capita data.

The PRA paper also contains statistical analyses for legal and political environment, physical property rights, with similar results.

The report does not answer the question of whether protection of IPR and other property rights causes higher GDP per capita. For example, high GDP per capita could cause higher property rights protection.

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In This Issue

This issue contains the following items:
  Obama and Aso Agree on Need to Resist Protectionism
  Obama Gives Speech to Congress
  Sen. Leahy Seeks Review of Warrantless Wiretaps and Other Anti-Terror Activities
  ABA Section Submits Views on Inequitable Conduct
  Property Rights Alliance Argues that IPR Protection is Linked to Higher GDP Per Capita

Washington Tech Calendar
New items are highlighted in red.
Wednesday, February 25

Ash Wednesday.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 23.

The Senate will meet at 9:30 AM.

8:30 AM. The Software and Information Industry Association (SIIA) will host a one day event titled "SaaS/GOV 2009". Among the topics to be covered are use of cloud computing for federal agencies. See, conference web site. Prices vary. Location: Willard Intercontinental.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event to release a report titled "The Atlantic Century: Benchmarking U.S. and EU Innovation and Competitiveness". This report report ranks 36 countries, the NAFTA region, and the EU-15, EU-10, and EU-25 areas, on 16 indicators of the extent to which their economies are able to compete based on innovation. The speakers will be Robert Atkinson (ITIF), Charles Vest (President of the National Academy of Engineering), John Kao, and Vivek Wadhwa. Kao is also the author of the 2007 book [Amazon] titled "Innovation Nation: How America Is Losing Its Innovation Edge, Why It Matters, and What We Can Do to Get It Back". See, registration page. Location: Suite 700, McPherson Building, 901 15th St., NW.

9:00 AM - 12:15 PM. The The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) will host an event titled "Summit on Deployment and Operational Guidelines for Next Generation IP-Enabled 911 and Enhanced 911 Services". See, notice and agenda [3 pages in PDF]. Location: FCC, Commission Meeting Room (TW-C305).

10:00 AM. The House Homeland Security Committee (HHSC) will hold a hearing titled "DHS: the Path Forward". The witness will Janet Napolitano, Secretary of Homeland Security. The HHSC will webcast this hearing. Location: Room 311, Rayburn Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Copyright Licensing in a Digital Age: Competition, Compensation and the Need to Update the Cable and Satellite TV Licenses". The witnesses will be Marybeth Peters (Register of Copyright), Fritz Attaway (MPAA), Bob Gabrielli (Directv), Irving Bradley (Consumers Union), Kyle McSlarrow (NCTA), and David Rehr (NAB). See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "Impacts of U.S. Export Control Policies on Science and Technology Activities and Competitiveness". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Ensuring Television Carriage in the Digital Age". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

11:00 AM - 12:30 PM. The Heritage Foundation will host a panel discussion titled "Ending 'Libel Tourism:' Federal Action Needed". The speakers will be Rachel Ehrenfeld, Andrew McCarthy, Andrew Grossman, and Robert Alt. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

2:00 PM. The House Judiciary Committee (HJC) will meet to mark up several bills, including HR 1110 [LOC | WW], the "Preventing Harassment through Outbound Number Enforcement Act of 2009" or "PHONE Act", and HR 628 [LOC | WW], a bill to establish a pilot program in certain U.S. District Courts to encourage enhancement of judicial expertise in patent cases. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Dawn Johnsen to be Assistant Attorney General in charge of the Office of Legal Counsel (OLC), and David Kris to be Assistant Attorney General in charge of the National Security Division (NSD). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

6:00 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Neil Chilson at nchilson at wbklaw dot com. Location: Beacon Bar and Grill, 1615 Rhode Island Ave., NW.

Deadline to submit requests to testify orally at the Office of the U.S. Trade Representative's (OUSTR) March 4, 2009, hearing regarding its plans to initiate negotiations on a Trans-Pacific Partnership free trade agreement with Singapore, Chile, New Zealand, Brunei Darussalam, Australia, Peru and Vietnam. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Pages 4480-4482.

Thursday, February 26

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 23.

9:15 AM - 4:00 PM. The Free State Foundation will host a one day conference titled "New Directions in Communications Policy". The keynote speaker will be Rep. Marsha Blackburn (R-TN). There will be panels on broadband policy and net neutrality, universal service and intercarrier compensation issues, and media regulatory policy. The speakers will include Michael Powell, Deborah Tate, Richard Wiley, Robert Atkinson (ITIF), Steve Davis (Qwest), Gerald Brock (George Washington University), Jeff Campbell (Cisco), Jim Cicconi (AT&T), Robert Crandall (Brookings Institution), Diane Disney (Pennsylvania State University), James Gattuso (Heritage Foundation), Ellen Goodman (Rutgers School of Law), John Mayo (Georgetown University), Kyle McSlarrow (NCTA), Glen Robinson (University of Virginia Law School), Jim Speta (Northwestern University School of Law), Tom Sugrue (T-Mobile), Tom Tauke (Verizon), Joe Waz (Comcast), Steven Wildman (Michigan State University), and Christopher Yoo (University of Pennsylvania Law School). This event is free. RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org. Location: National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy will hold a hearing titled "Competition in the Ticketing and Promotion Industry". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "Beyond the Classroom: Informal STEM Education". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the nominations of David Ogden to be Deputy Attorney General, Thomas Perrelli to be Associate Attorney General, and Elena Kagan to be Solicitor General. The SJC will webcast this event. See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

Deadline to submit written comments to the U.S. Patent and Trademark Office (USPTO) regarding whether or not to adopt some form of deferred examination for patent applications. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947.

Friday, February 27

Rep. Hoyer's schedule for week of February 23 states that no votes are expected in the House.

FULL. 12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Legislative, Wireless and Wireline Committees will host a brown bag lunch titled "Broadband and the Economy: What should be the role of Broadband in Stimulating U.S. Economic Recovery". Location: USTelecom, Suite 400, 607 14th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding application of the closed captioning rules to digital broadcasting, specifically to broadcasters that choose to use their digital allotment to multicast several streams of programming. The FCC adopted this item on November 3, 2008, and released the text [57 pages in PDF] on November 7, 2008. It is FCC 08-255 in CG Docket No. 05-231. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1654-1661.

Deadline to submit initial comments to the Federal Communications Commission (FCC) to assist it in preparing a report to the Congress on the status of competition in markets for the delivery of video programming. The FCC engaged in the legal fiction of adopting a Notice of Inquiry (NOI) on November 27, 2007. It did not release the text [41 pages in PDF] of a NOI until January 16, 2009. It is FCC 07-207 in MB Docket 07-269. This NOI requests comments regarding "changes in the marketplace between 2006 and 2007". See, notice in the Federal Register, February 11, 2009, Volume 74, No. 27, at Pages 6875-6882.

Saturday, February 28

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [149 pages in PDF] of Special Publication 800-85A-1, titled "PIV Card Application and Middleware Interface Test Guidelines".

Monday, March 2

10:00 - 11:30 AM. The Interactive Advertising Bureau (IAB) will host an event titled "Political Online Advertising in the 2008 Election: Politics Will Never Be the Same Again". See, notice and registration page. Location: Venable, 575 7th St., NW.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding 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. These comments assist the OUSTR in fulfilling its obligations under Section 182 of the Trade Act Act of 1974. See, notice in the Federal Register, January 23, 2009, Vol. 74, No. 14, Page 4263-4264.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding possible revision or elimination of rules under the Regulatory Flexibility Act. See, notice in the Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79667-79683.

EXTENDED TO MARCH 16. Deadline to submit FCC Form 477to the Federal Communications Commission (FCC). This is the FCC semi-annual form for collection of data on local telephone and broadband internet access lines. See also, February 12, 2009, Public Notice [2 pages in PDF]. See, February 23, 2009, order [3 pages in PDF].

Tuesday, March 3

9:00 AM - 5:15 PM. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC) will meet. The agenda for March 3 includes "View from Washington", "ASCR Update", "Changes to INCITE Program", "Update on Extreme Scale Science Workshops", "Cyber Security R&D Planning", "Realizing Petascale Computing", "ESnet Update", "ASCAC Subcommittee Updates", and "Public Comment". See, notice in the Federal Register, February 10, 2009, Vol. 74, No. 26, at Page 6608. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Circuit City Unplugged: Why Did Chapter 11 Fail To Save 34,000 Jobs?". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Wednesday, March 4

The Department of Energy (DOE) Office of Electricity Delivery and Energy Reliability (OE) will hold a conference titled "Design Concepts of Future Electric Transmission". See, notice in the Federal Register, February 2, 2009, Vol. 74, No. 20, at Page 5826. Location?

9:00 AM - 4:15 PM. The U.S.-China Economic and Security Review Commission will hold a meeting titled "China's Military and Security Activities Abroad". See, notice in the Federal Register, February 2, 2009, Vol. 74, No. 20, at Pages 5896-5897. Location: Room 562, Dirksen Building, Capitol Hill.

9:00 AM - 12:00 NOON. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC) will meet. The agenda for March 4 includes "Gordon Bell Petascale Application -- Superconductors International Collaboration", "INCITE User Perspective", and "Public Comment". See, notice in the Federal Register, February 10, 2009, Vol. 74, No. 26, at Page 6608. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing on HR 848 [LOC | WW], the "Performance Rights Act". See, notice. The HJC will webcast this hearing. See also, story titled "Performance Rights Act Reintroduced" in TLJ Daily E-Mail Alert No. 1,896, February 10, 2009. Location: Room 2141, Rayburn Building.

2:00 PM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Getting to the Truth Through a Nonpartisan Commission of Inquiry". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

3:00 - 5:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice [PDF] and notice in the Federal Register, February 17, 2009, Vol. 74, No. 30, at Page 7435. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

TIME? The Office of the U.S. Trade Representative (OUSTR) will hold a hearing regarding its plans to initiate negotiations on a Trans-Pacific Partnership free trade agreement with Singapore, Chile, New Zealand, Brunei Darussalam, Australia, Peru and Vietnam. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Pages 4480-4482. Location?

Deadline to register for the National Institute of Standards and Technology's (NIST) Office of Law Enforcement Standards' (OLES) March 11, 2009, meeting via the internet to bring Project 25 Compliance Assessment Program stakeholders together to discuss what the process will be to assess software based test tools for the Project 25 Compliance Assessment Program. See, notice in the Federal Register, February 17, 2009, Vol. 74, No. 30, at Pages 7397-7398.