6/4. The U.S. Patent and Trademark Office (USPTO) proposed a three track patent examination system.

David Kappos (at right), head of the USPTO, stated in a release on June 3 that "We recognize that the traditional 'one-size-fits-all' examination timing may not work for all applicants ... By allowing applicants greater control over the timing of examination, the USPTO will be able to deploy its resources to better meet the needs of innovators."

The USPTO published more details in a notice in the Federal Register on June 4. See, Federal Register, June 4, 2010, Vol. 75, No. 107, at Pages 31763-31768.

The USPTO stated in its release that under the first track, applicants would be able, for an increased fee, to obtain "prioritized" and "expedited" examination. The USPTO added that the goal "would be to provide a first Office action on the merits within four months and a final disposition within 12 months of prioritized status being granted".

The second track would be for "traditional examination under the current procedures".

The third track would enable applicants to delay examination. The USPTO stated that "for non-continuing applications first filed in the USPTO, an applicant-controlled delay for up to 30 months prior to docketing for examination".

The USPTO added in its release that "For applications filed in the USPTO that are based on a prior foreign-filed application, no action would be taken by the USPTO until the agency receives a copy of the search report, if any, and first office action from the foreign office as well as an appropriate reply to the foreign office action as if the foreign office action was made in the application filed in the USPTO.  Following or concurrent with the submission of the foreign office action and reply, the applicant may request prioritized examination or obtain processing under the current procedure."

The USPTO also announced a public meeting, and requested written comments. The meeting will be on July 20 at 1:30 PM at the USPTO's Madison building, 600 Dulany Street, Alexandria, Virginia. The deadline to register to attend is 5:00 PM on July 16.

The USPTO's notice in the Federal Register identifies numerous topics upon which it seeks comments, and then propounds 31 specific questions, some of which have multiple parts. The deadline to submit written comments is August 20, 2010.

Some applicants have particularly urgent interests in obtain quick examinations. For example, credit or equity funding may depend upon the grant of a patent.

The USPTO notice states that this three track system will provide applicants "greater control over when their applications are examined" and will "promote greater efficiency in the patent examination process". For example, it states that "applicants who chose Track III because their applications were of lower value might ultimately decide not to pursue their application examination efforts that had been expended on the applications".

It does not address applicants with high value applications who choose to delay for other reasons, such as hiding applications from competitors. However, the notice asks, "Should eighteen-month patent application publication be
required for any application in which the 30-month queue is requested?"

The USPTO does not currently have statutory authority to set fees. This proposal would entail fee changes. However, pending patent reform legislation could be the vehicle for granting such authority. The Senate and House bills are S 515 [LOC | WW] and HR 1260 [LOC | WW]. Both are titled the "Patent Reform Act of 2009". The March 2010 draft [105 pages in PDF] of the Senate bill, at Section 9, gives the USPTO fee setting authority.

Also, on May 18, Rep. John Conyers (D-MI) and Rep. Lamar Smith (R-TX) introduced HR 5322 [LOC | WW], the "Patent and Trademark Office Funding Stabilization Act of 2010". It would give the USPTO authority to set fees by rules.

The USPTO's release and notice both state that this proposal will better provide the USPTO with resources, and enable it to better align and deploy its resources. However, neither document addresses the circumstance that that Congress often does not allow the USPTO to keep and use all of the fees that it collects. The Congress takes some of the fees collected by the USPTO to fund other government programs. HR 5322 would prohibit this practice. However, members of the House and Senate Appropriations Committees in particular have successfully opposed such fee retention proposals in the past.

Neither the release nor notice contain proposals for the actual increased or additional fees for expedited examination. However, the notice describes a methodology for calculating the Track I fees.

Small businesses and independent inventors may have cause to complain that the USPTO, by charging higher fees for expedited examination, is establishing a pay to play system that is biased in favor of well financed entities, and that discriminates against innovative inventors.

That Kappos was Assistant General Counsel for Intellectual Property at IBM before his appointment to the USPTO may exacerbate the perception of bias. The USPTO reported in April of 2010 that IBM received 4,887 patents in 2009, more than any other company. See, report titled "Patenting by Organizations: 2009".

6/4. On June 1, 2010, the Federal Communications Commission (FCC) released another paper [PDF] that contains public opinion survey based findings. The just released paper addresses consumers' understanding of, and attitudes about, their broadband and cell phone service. See also, FCC release.

The FCC commissioned a survey by Abt/SRBI and Princeton Survey Research Associates. The FCC is releasing the survey responses piecemeal as it releases papers. The just released paper, and a paper [14 pages in PDF] released on May 25, were written by the FCC's John Horrigan and Ellen Satterwhite.

The FCC released the entire list of survey questions [MS Word] on June 4, 2010.

Horrigan told TLJ that this series of papers will continue. He added that the FCC will publish in electronic format the responses to questions, as the FCC addresses them in papers. The FCC released the first batch of survey response data [SPSS format] on June 4.

The June 1 paper reports the responses to a question regarding home broadband consumers' satisfaction with the speed of their broadband service. 50% are very satisfied, and another 41% are somewhat satisfied, with the speed of their home broadband internet access.

The paper also states that 80% of these consumers cannot identify in kilobits per second, or megabits per second, the download or downstream speed of their home broadband internet access.

Joel Gurin, Chief of the FCC's Consumer and Governmental Affairs Bureau, stated in a another release that "This ignorance can be costly: The difference between a low-cost, slower broadband plan and a high-speed, more expensive one can be hundreds of dollars a year. In order to get the best service at the best value, consumers first need to understand what broadband speed they need for the applications they want to run. In addition, broadband service providers need to advertise their speeds in clear terms, and consumers need to be assured that the speeds they actually receive match what’s advertised. While broadband providers now advertise ``blazing fast´´ internet service at ``up to´´ a certain speed, that's not specific enough to help consumers make informed choices."

The FCC also issued a Public Notice [5 pages in PDF] that propounds questions regarding collecting data on mobile broadband performance and coverage. The deadline to submit comments is July 1, 2010. This item is DA 10-988 in CG Docket No. 09-158, CC Docket No. 98-170, and WC Docket No. 04-36.

The paper also provides summary data on responses to numerous questions about cell phone users' satisfaction.

Last week the FCC commenced a proceeding regarding imposing a "bill shock" regulatory regime on wireless service providers. The FCC also released a paper last week that it might cite as support for such rules. See, stories titled "FCC Starts Bill Shock Proceeding" and "FCC Releases Paper on Consumer Understanding of Cell Phone Billing Practices" in TLJ Daily E-Mail Alert No. 2,088, May 27, 2010.

This week's paper discloses that 92% of wireless customers are either very satisfied or somewhat satisfied overall with their current cell phone service. 75% are either very satisfied or somewhat satisfied with the cost of their service. 83% are either very satisfied or somewhat satisfied with customer service.

Notably, while the FCC asked questions about cell phone customers' satisfaction with service overall, prices, and customer service, and reported the results, the FCC also asked similar questions regarding home broadband service, but has not yet reported the results. (See, Question 13, at page 9 of questionnaire.)

These cell phone customer satisfaction figures are vastly higher than the approval ratings of the Congress, which regulates communications companies directly via legislation, and indirectly through the FCC. For example, Rasmussen Reports stated in April that "Just 11% of all voters rate Congress' job performance as good or excellent" and "Thirty-eight percent (38%) of voters say most members of Congress are corrupt". See, April 22, 2010, report.

Steve Largent, head of the CTIA, which represents wireless service providers, stated in a release that "the FCC's survey confirmed what numerous other third-party surveys have concluded: that 92% of American consumers are satisfied with their wireless service. As a result of the billions of dollars spent annually to improve wireless network coverage and speed, consumers continue to benefit from an increasingly robust wireless broadband experience and reap the benefits of this innovative wireless ecosystem."

Perhaps it should also be noted that among the factors that might impact consumers' perceptions of, and satisfaction with, their broadband download speeds, is network congestion. Moreover, the FCC's one foray into regulating broadband service providers in a manner that might affect broadband speeds was its August 2008 Comcast order [67 pages in PDF]. In that adjudication, the FCC penalized Comcast for network management practices directed at reducing congestion, and providing faster service to the vast majority of its customers. The U.S. Court of Appeals (DCCir) vacated that order on April 6, 2010. See, opinion [36 pages in PDF] in Comcast v. FCC., and story titled "Court of Appeals Vacates FCC's Comcast Order" in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

Finally, the FCC's questionnaire, which contains 30 pages of questions, nowhere asks what consumers think of the level of taxation of communications services, or whether such taxes have affected their ability to afford of such services or their decision to subscribe to services.

6/3. President Obama announced his intent to nominate Subra Suresh to be Director of the National Science Foundation (NSF). See, White House news office release. He is the Dean of the School of Engineering at the Massachusetts Institute of Technology (MIT). 

6/2. Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC) sent a letter to Sen. Harry Reid (D-NV), the Senate Majority Leader, and Sen. Mitch McConnell (R-KY), the Senate Minority Leader, urging that pending judicial nominees already approved by the SJC be scheduled for votes in the full Senate. Presidents nominate District Court and Court of Appeals judges and Supreme Court justices. Members of the opposing party attempt to drag and delay, and in some cases defeat, these nominees. When former President Bush was nominating Republicans to the judiciary, Sen. Leahy was among those who obstructed. Now, Republicans are filling his former role, and Sen. Leahy is complaining about "obstruction and unnecessary delays".

6/2. The Public Knowledge (PK) named Ernesto Falcon Director of Government Affairs. He previously worked for Rep. Bart Stupak (D-MI), who is not running for re-election. See, PK release.

6/1. The US Telecom named Gregory Willis VP for General Business Policy Issues, and Annie Chavez Director of Government Affairs. Willis is a former General Counsel of the Senate Small Business Committee and a former member of the staff of Sen. Blanche Lincoln (D-AR). Chavez was previously Legislative Counsel to Sen. Jeff Bingaman (D-NM). A decade ago, she worked for former Federal Communications Commission (FCC) Commissioner Gloria Tristani. See, US Telecom release.

5/27. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nomination of Robert Chatigny to be a Judge of the U.S. Court of Appeals (2ndCir). His nomination is on the agenda for the SJC's meeting of June 10, 2010.

5/27. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nomination of John Gibney to be a Judge of the U.S. District Court (EDVa). See, Congressional Record, May 27, 2010, at Page S4528.

5/27. President Obama nominated Max Cogburn to be a Judge of the U.S. District Court for the Western District of North Carolina. See, White House news office release and release. He is in private practice, but was previously a federal Magistrate Judge.

5/27. President Obama nominated James Shadid to be a Judge of the U.S. District Court for the Central District of Illinois. See, White House news office release and release. He is currently a state court judge in Illinois.

6/3. The Public Knowledge (PK) released a paper [12 pages in PDF] titled "Some Modest Proposals for Enhancing Transparency, Efficiency and Innovation in Public Spectrum Management" and a paper [31 pages in PDF] titled "Creating Sustainable Spectrum Access Through Federal Secondary Markets". The latter paper urges the use of dynamic real time leasing of spectrum. The authors of both paper are Gregory Rose and the PK's Harold Feld. See also, PK release.

5/18. Microsoft filed a complaint in the U.S. District Court (WDWash) against Salesforce.com alleging infringement of nine patents. See, Microsoft release. The patents in suit relate to customer relations management (CRM).

The House will not meet. It will next meet at 2:00 PM on Tuesday, June 8. See, HConRes 282.

The Senate will not meet. It will next meet at 2:00  PM on Monday, June 7.

10:00 AM. The Securities and Exchange Commission (SEC) will hold a seminar on the use of eXtensible Business Reporting Language (XBRL) by mutual funds to comply with new rules that require them to file data in the risk/return summary section in XBRL format. See, notice. Location: SEC, auditorium, 100 F St., NE.

The House will not meet.

The Senate will meet at 2:00 PM.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Akamai Technologies v. Limelight Networks, a patent infringement case regarding technology for web site hosting, App. Ct. No. 2009-1372, an appeal from the U.S. District Court (DMass). Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Webzero v. Clicvu, a patent infringement case, App. Ct. No. 2009-1483, an appeal from the U.S. District Court (CDCal). Location: Courtroom 402, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fujitsu Limited v. Netgear, a patent infringement case regarding wireless internet technology, App. Ct. No. 2010-1045, an appeal from the U.S. District Court (WDWisc). Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a panel discussion titled "The Future of Speech on the Borderless Internet". The PFF states that panelists will discuss "trans-national regulation and litigation of defamation, hate speech, indecency and political dissent". The speakers will be Christopher Wolf (Hogan Lovells), Evgeny Morozov (Foreign Policy magazine), and Berin Szoka (PFF). See, notice and registratio page. This event is open to the public, but registration is required. Location: Hogan Lovells, 555 13th St.,  NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding amending the FCC's amateur radio service rules with respect to amateur radio operations during government sponsored emergency preparedness and disaster readiness drills and tests. The FCC adopted its NPRM on March 18, 2010, and released the text [8 pages in PDF] on March 24, 2010. It is FCC 10-45 in WP Docket No. 10-72. See, notice in the Federal Register, April 22, 2010, Vol. 75, No. 77, at Pages 20951-20954.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking [45 pages in PDF] regarding universal service low income subsidy programs in Puerto Rico. The FCC adopted and released this item on April 16, 2010. It is FCC 10-57 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109. See, notice in the Federal Register, May 7, 2010, Vol. 75, No. 88, at Pages 25156-25159.

Deadline to submit comments to the Department of Justice's (DOJ) Bureau of Prisons (BOP) regarding its proposed rule changes regarding prison communications, including prisoner telephone communications. This proceeding does not pertain to delivery or use of unauthorized cell phones in federal prisons. See, notice in the Federal Register, April 6, 2010, Vol. 75, No. 65, at Pages 17324-17329.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its Notice of Inquiry (NOI) regarding the nexus between privacy policy and innovation in the internet economy. See, notice in the Federal Register, April 23, 2010, Vol. 75, No. 78, at Pages 21226-21231.

The House will meet at 2:00 PM.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Finjan v. Secure Computing, a patent infringement case regarding technology for protecting computers and networks from hostile downloadables, App. Ct. No. 2009-1576, an appeal from the U.S. District Court (DDel). Location: Courtroom 201, 717 Madison Place, NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host a panel discussion on the FCC's Notice of Inquiry regarding regulation of media ownership, and other topics. The speakers will be Jennifer Tatel (Chief of the FCC's Media Bureau's Industry & Analysis Division), Brad Gillen (Legal Advisor to FCC Commissioner Meredith Baker), Rick Kaplan (Legal Advisor to FCC Commissioner Mignon Clyburn), and Paul Gallant (Concept Capital Washington Research Group). See, Notice of Inquiry [38 pages in PDF] and story titled "FCC Adopts Broadcast Ownership NOI" in TLJ Daily E-Mail Alert No. 2,087, May 26, 2010. This proceeding is numbered MB Docket No. 09-182. The FCC's NOI states that it is a permit but disclose proceeding within the meaning of the FCC's ex parte communications rules, 47 C.F.R. §§ 1.200 et seq. The Federal Communications Bar Association (FCBA) states that this is an FCBA event. Location: National Association of Broadcasters (NAB), 1771 N St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "CLE Seminar on The Judicial Year in Review and the Impact of the Comcast Decision". The speakers will include Austin Schlick (FCC General Counsel), Mack Armstrong (FCC Associate General Counsel), Richard Welch (FCC Associate General Counsel), Andy Tollin (Wilkinson Barker Knauer), Josh Turner (Wiley Rein), Sam Feder (Jenner & Block), Jon Nuechterlein (Wilmer Hale), and Harold Feld (Public Knowledge). See, notice. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding numerous proposed changes to the FCC's procedural rules and organizational rules. The FCC adopted this item on February 18, 2010, and released the text [23 pages in PDF] on February 22, 2010. It is FCC No. 10-32 in GC Docket No. 10-44. See, notice in the Federal Register: March 25, 2010, Vol. 75, No. 57, at Pages 14401-14409.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding making minor changes to its rules pertaining to ex parte communications with the FCC. The FCC adopted this item on February 18, 2010, and released the text [27 pages in PDF] on February 22, 2010. It is FCC No. 10-31 in GC Docket No. 10-43. See, notice in the Federal Register, March 25, 2010, Vol. 75, No. 57, at Pages 14409-14417.

8:15 AM - 4:30 PM. The U.S.-China Economic and Security Review Commission may hold a hearing titled "Evaluating China's Role in the World Trade Organization over the Past Decade". This event is open to the public. See, notice in the Federal Register, May 5, 2010, Vol. 75, No. 86, at Page 24775. Location: Room 562, Dirksen Building, Capitol Hill.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services will hold a hearing on the FY 2011 budget for the Federal Communications Commission (FCC). FCC Chairman Julius Genachowski will testify. The HAC will webcast this event. Location: Room 2359, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Research Corporation Technologies, Inc. v. Microsoft Corp., a patent infringement case, App. Ct. No. 2010-1037, an appeal from the U.S. District Court (DAriz). Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Spansion Inc. v. USITC, a Section 337 case regarding importation of semiconductor chips, App. Ct. No. 2009-1460, an appeal from the U.S. International Trade Commission. Location: Courtroom 402, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The American Bar Association's (ABA) Section of International Law will host an event titled "Obama Administration Export Control Reform". See, notice for attending in person, and notice for attending by teleconference. The price to attend ranges from free to $25. Location: Miller & Chevalier, Suite 900, 655 15th St.,  NW.

2:00 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "Oversight of the Enforcement of the Antitrust Laws". The witnesses will be Christine Varney (Assistant Attorney General in charge of the DOJ's Antitrust Division) and Jonathan Leibowitz (Chairman of the Federal Trade Commission). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will hold a hearing on HR 3101 [LOC | WW], the "Twenty-First Century Communications And Video Accessibility Act Of 2009". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the nominations Robert Chatigny to be a Judge of the U.S. Court of Appeals (2ndCir), Scott Matheson (USCA/10thCir), John McConnell (USDC/DRI), James Bredar (USDC/DMd), Ellen Hollander (USDC/DMd), and Susan Nelson (USDC/DMinn). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nomination of John Pistole to be head of the Department of Homeland Security's (DHS) Transportation Security Administration (TSA). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The U.S. - China Economic Relationship: A New Approach for A New China". Timothy Geithner (Secretary of the Treasury) will testify. See, notice. Location: Room 215, Dirksen Building.

12:00 NOON - 1:30 PM. The Federal Communications Commission (FCC) will host an panel discussion titled "Meet the FCC Enforcement Bureau". The Federal Communications Bar Association (FCBA) states that this is an FCBA event. Location: Akin Gump, 1333 New Hampshire Ave., NW.

1:00 - 2:30 PM. The American Bar Association's (ABA) Government and Public Sector Lawyers Division will host an event titled "E-Discovery, Public Records and Metadata CLE Teleconference". See, notice. The price to attend ranges from $60 to $150.

3:30 - 5:00 PM. The New America Foundation (NAF) will host an event titled "What's Next After Broadband Stimulus?: The Next Catalysts for Community and Municipal Broadband". The speakers may include Mignon Clyburn (FCC Commissioner), Benjamin Lennett (NAF), Craig Settles (Communities United for Broadband), Bryan Sivak (District of Columbia government), Joanne Hovis (NATOA), and Gary Carter (City of Santa Monica). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Computer Chache Coherency Corp v. Intel, a patent infringement case, App. Ct. No. 2010-1040, an appeal from the U.S. District Court (NDCal). Location: Courtroom 402, 717 Madison Place, NW.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for membership on the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC). See, notice in the Federal Register, March 29, 2010, Vol. 75, No. 59, at Pages 15417-15418.

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