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November 11, 2010, Alert No. 2,153.
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USPTO Expands and Extends Program for Expedited Processing of Green Patent Applications

11/10. The U.S. Patent and Trademark Office (USPTO) announced in a release, and in a notice in the Federal Register, that it is expanding and extending its program titled "Green Technology Pilot Program", which allows certain politically favored patent applications to be advanced out of turn for examination.

The notice states that "Initially, participation was limited to applications filed before December 8, 2009. The USPTO is hereby expanding the eligibility for the pilot program to include applications filed on or after December 8, 2009. The program is also being extended until December 31, 2011."

However, it adds that the USPTO "will accept only the first 3,000 grantable petitions to make special under the Green Technology Pilot Program in unexamined applications irrespective of the filing date of the application."

Neither the release nor the notice addresses why green technology patent applications should receive special treatment, and other applications should be relegated to slower processing. Nor does either document address the merits of inserting political and ideological considerations into the management of patent processing. Nor does either document hint at what other politically favored technologies or applicants might receive special treatment in the future.

Nor does either document address the Congress's persistent underfunding of the USPTO, and the related patent pendency problem for all types of applications.

David KapposDavid Kappos (at left), head of the USPTO, stated in the release that "We've seen great results so far for those applications in the Green Technology Pilot Program, so we want to extend it for another year and open the program to additional green inventions ... By doing so, we hope to help stimulate investment in green technology, bring more green inventions to market, and create jobs."

See, Federal Register, November 10, 2010, Vol. 75, No. 217, at Pages 69049-69050.

DHS Expands E-Verify to Include Passport Photo Matching

11/10. The Department of Homeland Security (DHS) issued a release regarding the DHS's U.S. Citizenship and Immigration Service's (USCIS) E-Verify program, which is criticized by some, but seen by others as critical to immigration enforcement.

This information technology (IT) based program is part of the DHS's strategy of assigning to employers the task of enforcing immigration laws. The E-Verify web site states that "E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States". It utilizes electronic databases maintained by the Social Security Administration (SSA). Going forward, it will also utilize Department of State (DOS) passport data.

The underlying assumptions are that the government is capable of creating an IT based system that can enable employers to ascertain whether job applicants are eligible to be employed in the U.S., and that by effectively preventing ineligible persons from working, aliens will have little incentive to illegally enter into or stay in the US.

However, many ineligible persons circumvent the process by assuming the identity of eligible persons. E-Verify erroneously verifies their eligibility for employment. In addition, for a small percentage of employment applicants who are screened through the E-Verify program, and who are eligible for employment, the DHS erroneously fails to confirm their eligibility for employment, due to incorrect data in SSA databases.

The program is voluntary for most employers. It is a temporary program.

The just issued release states that the E-Verify program has been expanded "to include U.S. passport photo matching -- further enhancing the integrity of the program by enabling E-Verify to automatically check the validity and authenticity of all U.S. passports and passport cards presented for employment verification checks."

Janet NapolitanoJanet Napolitano (at right), the Secretary of Homeland Security, stated in this release that "E-Verify is a smart, simple and effective tool that helps employers and businesses throughout the nation maintain a legal workforce".

Most job applicants (and the persons whose identities are used by fraudulent applicants) do not have passports. The DHS release states that only "Approximately 10 percent of all E-Verify queries currently provide a U.S. passport".

The Congress has long considered, but failed to enact, comprehensive immigration reform legislation.

There are proposals to make the E-Verify program permanent, to make it mandatory for all employers, and to attempt to increase the reliability of the electronic databases that function as the backend for the program. See, for example, Title II of HR 3308 [LOC | WW], the "Secure America Through Verification and Enforcement Act of 2009" or "SAVE Act", sponsored by Rep. Heath Shuler (D-NC). He is a Blue Dog Democrat, first elected in 2006, who won re-election on November 2 with 54% of the vote.

There are also proposals to abandon it. See for example, short paper titled "Scrap E-Verify" and paper [24 pages in PDF] titled "Electronic Employment Eligibility Verification: Franz Kafka's Solution to Illegal Immigration", by the Cato Institute's Jim Harper.

The E-Verify program was created by Title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law No. 104-208. The program is codified at 8 U.S.C. § 1324a notes.

APEC Members Issue Joint Statement

11/11. The Asia-Pacific Economic Cooperation (APEC) Ministers, who are meeting in Yokohama, Japan, released a document titled "Joint Statement" that addresses, among many other topics, intellectual property protection, information technologies, and communications.

It states that "We endorsed efforts to promote cross-border trade in services in new areas of interest, including legal services, accounting services, ... information and communication technology-related services ...".

It states that "We reaffirmed our commitment to strengthen the protection and enforcement of intellectual property rights (IPR) and reiterated the importance of comprehensive and balanced intellectual property systems that provide for and protect the incentives that encourage creativity and innovation and provide the tools for successful management and utilization of intellectual property."

The IPR section also states that "We welcomed the progress made in, and will strengthen efforts on, the initiatives concerning human resource development and cooperation on patent examination launched this year with a view to building a global intellectual property infrastructure for promoting innovation."

"Noting the work done on reducing the proliferation of counterfeit and pirated goods through cooperative efforts such as the APEC Anti-Counterfeiting and Piracy Initiative, we encouraged economies to further their efforts in this regard." The IPR section also states that "We also encouraged officials to enhance cooperation between authorities and stakeholders to strengthen intellectual property enforcement by holding public-private dialogues."

The Joint Statement next provides that "We welcomed the continued work under the digital prosperity agenda, including discussion on innovation in information and communication technologies (ICTs) as a primary driver of economic growth in the region."

It also addresses privacy: "We commenced operation of the APEC Cross-Border Privacy Enforcement Arrangement, which is the first mechanism in the APEC region for Privacy Enforcement Authorities to share information and provide assistance for cross-border data privacy enforcement."

Finally, it states that "ICTs are an engine for promoting new growth and enhancing socio-economic activities. ICT also brings transformative changes in the lives of many peoples in the Asia-Pacific region. As such, we welcomed Ministers' commitment at the APEC Ministerial Meeting on the Telecommunications and Information Industry in October in Okinawa, Japan, to further develop broadband infrastructure and to strengthen the use of ICT in areas such as the environment, education, health care, and emergency management. We also welcomed the Ministers' commitment to enhance measures regarding, among others, deploying IPv6, promoting emerging services and technologies such as cloud computing, ensuring cyber security, eliminating the digital divide, and developing human resources."

The APEC's 21 members are Australia, Brunei Darussalam, Canada, Chile, People's Republic of China, Hong Kong, Indonesia, Japan, Korea, Malaysia, Mexico, New Zealand, Papua New Guinea, Peru, Philippines, Russia, Singapore, Taiwan, Thailand, US, and Viet Nam.

Locke Discusses Trade and APEC Meeting

11/10. Secretary of Commerce Gary Locke gave a speech in Tokyo, Japan, in which he discussed trade and the Asia-Pacific Economic Cooperation (APEC) Economic Leaders' Meeting being held in Yokohama, Japan on November 10-14.

Gary LockeLocke (at right) said that "trade between the United States, Japan and all of Asia is really about one thing. Unlocking our full potential…The potential of our people…The potential of our businesses…And the potential we have to build a world that is safer and more prosperous for our children. We can do this by creating an open investment and trade environment that allows businesses, entrepreneurs and policy makers to bring their respective strengths to the table and spur the type of innovation and economic growth that we could never achieve alone."

He said that "when countries get together at APEC, I think a simple barometer for success is whether or not our policies are making it easier or harder for our innovators to exchange ideas, to invest and to trade."

The governments of the US and Japan "are doing a lot of things right in our trade relationship", said Locke. "I'm pleased to note that the longstanding relationship between the Commerce Department and the Ministry of Economy, Trade and Industry Ministry has contributed to a regulatory environment in which U.S. exporters are thriving."

For example, the US Department of Commerce (DOC) agencies, and their counterparts in Japan, are collaborating on "fast-track patent examination procedure and IPR protection".

However, he also said that "some countries have been resorting to non-tariff barriers to limit foreign competition." He continued that "They are imposing costly and redundant testing and compliance procedures, non-transparent standard-setting or regulatory procedures, and other requirements that act as impediments to free trade."

He argued that "Governments and businesses must be unified and insistent in opposing such policies."

People and Appointments

11/10. Sarah Whitesell was named Deputy Chief of the Federal Communications Commission's (FCC) Media Bureau. The FCC stated in a release that her work will include "broadcast ownership, children's issues, and large media transactions".

11/10. Phoebe Yang will leave the Federal Communications Commission (FCC) in December. She is currently Senior Advisor to the Chairman on Broadband. She will go to work for the Advisory Board Company. See, FCC release.

11/10. Joseph Brenner was named Chief Counsel of the Securities and Exchange Commission's (SEC) Division of Enforcement. See, SEC release. Brenner is a long time securities lawyer from the Washington DC office of the law firm of Wilmer Hale.

11/10. The American Intellectual Property Law Association (AIPLA) elected new officers and board members at the 2010 AIPLA Annual Meeting last week in Washington DC. The new President is David Hill (Finnegan Henderson). He will also be the Chair of the AIPLA Executive Committee.

11/10. President Obama announced his intent to nominate Roberto Herencia and James Torrey to be Members of the Board of Directors of the Overseas Private Investment Corporation (OPIC). See, White House news office release.

11/8. Rep. Greg Walden (R-OR) was named Chairman of a Republican committee established to manage the Republicans' transition to the majority in the House of Representatives in the 112th Congress. See, release.

In This Issue
This issue contains the following items:
 • USPTO Expands and Extends Program for Expedited Processing of Green Patent Applications
 • DHS Expands E-Verify to Include Passport Photo Matching
 • APEC Members Issue Joint Statement
 • Locke Discusses Trade and APEC Meeting
 • People and Appointments
Washington Tech Calendar
New items are highlighted in red.
Thursday, November 11

Veterans Day. This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2010 Federal Holidays".

The House is in recess until November 15.

The Senate will not meet.

Friday, November 12

The Senate will meet in pro forma session.

9:00 AM - 12:30 PM. The University of Colorado's Silicon Flatirons (SF), Information Technology and Innovation Foundation (ITIF), and other groups will host a half day conference titled "The Unfinished Radio Revolution: New Approaches to Handling Wireless Interference". The speakers will be Robert Atkinson (ITIF), Pierre de Vries (SF), Dale Hatfield (SF), Michael Calabrese (New America Foundation), Ellen Goodman (Rutgers University -- Camden), Bruce Jacobs (Pillsbury Winthrop Shaw Pittman), Evan Kwerel (FCC Office of Strategic Planning and Policy Analysis), Gregory Rosston (Stanford University), Ari Fitzgerald (Hogan Lovells), Harold Feld (Public Knowledge), Thomas Hazlett (George Mason University), Michael Marcus (Marcus Spectrum Solutions LLC), Charla Rath (Verizon), and Cheryl Tritt (Wilkinson Barker Knauer). CLE credits. See, SF notice and ITIF notice. The ITIF will webcast this event. Location: ITIF/ITIC, 6th floor, 1101 K St., NW.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will meet. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67347-67348. Location: DOC, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

5:00 PM. Deadline to submit comments to the Department of Health and Human Services (DHHS) regarding its interim final rule regarding standards, implementation specifications, and certification criteria for electronic health record technology. The DHHS announced and recited this interim final rule in a notice in the Federal Register, October 13, 2010, Vol. 75, No. 197, at Pages 62686-62690.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the recommendations [105 pages in PDF] of the Advisory Committee for the 2012 World Radiocommunication Conference, and the recommendations [42 pages in PDF] of the National Telecommunications and Information Administration (NTIA). See, Public Notice (PN) released on October 28, 2010. This PN is DA 10-2060 in IB Docket No. 04-286.

Monday, November 15

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Bar Association v. FTC, App. Ct. No. 10-5057. Judges Rogers, Griffith and Edwards will preside. This case pertains to the Federal Trade Commission's (FTC) attempt to regulate attorneys as "creditors" within the meaning of Fair and Accurate Credit Transactions Act of 2003, Public Law No. 108-159. See, FTC brief. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

11:30 AM - 2:00 PM. The American Constitution Society (ACS) will host an event titled "National Security, Government Transparency and the First Amendment". Beth Noveck (Deputy Chief Technology Officer in the Executive Office of the President) will give the keynote speech. There will also be a panel discussion. The speakers will be Adam Liptak (New York Times writer), Melanie Sloan (Citizens for Responsibility and Ethics in Washington), Vincent Warren (Center for Constitutional Rights), David Rivkin (Baker Hostetler), and Jerome Barron (George Washington University law school). Lunch will be served. This event is free. Registration is required. See, notice and registration page. Location: Carnegie Endowment for International Peace, 1779 Massachusetts Ave., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical and Wireless Committees will host a brown bag lunch titled "The Spectrum Inventory: Status and Implications". For more information, contact Christy Hammond, chammond at wileyrein dot com or 202-719-7365. Location: Wiley Rein, 1750 K St., NW.

Deadline to submit comments to the Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Internet Policy Task Force (IPTF) regarding government policies that restrict global information flows on the internet. See, notice in the Federal Register, September 29, 2010, Vol. 75, No. 188, at Pages 60068-60073, and story titled "NTIA Seeks Comments on Governments' Restrictions of Free Flow of Information on the Internet" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010.

Tuesday, November 16

9:00 AM - 6:30 PM. The US Telecom will host an event titled "USTelecom Voice Innovation Summit". The price to attend ranges from $395 to $495. See, notice. For more information, contact Amanda Taylor at 202-326-7361 or ataylor at ustelecom dot org. Location: US Telecom, Suite 400, 607 14th St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division's (AD) Economic Analysis Group (EAG) will host a presentation titled "Spectrum Auction Design". The speaker will be Peter Cramton (University of Maryland). For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

2:30 PM. The Senate Banking Committee (SBC) will meet in executive session to consider the nomination of Peter Diamond to be a Member of the Board of Governors of the Federal Reserve System. See, notice. Location: Room 538 Dirksen Building.

4:00 - 7:00 PM. The Information Technology and Innovation Foundation (ITIF) and Time Warner Cable will host an event titled "Perspectives on the Future of Digital Communications". The moderators will be Robert Atkinson (ITIF) and Fernando LaGuarda (Time Warner Cable). Dale Hatfield (University of Colorado at Boulder) will present a paper [16 pages in PDF] titled "The Challenge of Increasing Broadband Capacity". John Palfrey (Harvard law school) will present a paper [10 pages in PDF] titled "The Challenge of Developing Effective Public Policy on the Use of Social Media by Youth". Nicol Lee (Joint Center for Political and Economic Studies) will present a paper [12 pages in PDF] titled "The Challenge of Increasing Civic Engagement in the Digital Age". Scott Wallsten (Technology Policy Institute) will present a paper [8 pages in PDF] titled "The Future of Digital Communications Research and Policy". Christopher Yoo (University of Pennsylvania law school) will present a paper [16 pages in PDF] titled "The Challenge of New Patterns in Internet Usage". See, notice. This event if free and open to the public. Location: Chandelier Room, St. Regis Hotel, 16th and K Streets, NW.

Wednesday, November 17

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (MPETAC) will hold a partially closed meeting. See, notice in the Federal Register, October 28, 2010, Vol. 75, No. 208, at Pages 66356-66357. Location: DOC, Room 6087B, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold an oversight hearing on the Transportation Security Administration (TSA). See, notice. Location: Room 253, Russell Building.

10:30 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "Securing Critical Infrastructure in the Age of Stuxnet". Stuxnet is a complex worm, discovered in July of 2010, that targets industrial control systems in order to take control of industrial facilities, such as power plants. It primarily attacked computers located in Iran and a few other countries. It may have been part of an operation of state sponsored cyber warfare. See, Symantec's web page titled "W32.Stuxnet". The witnesses will be Sean McGurk (acting Director of the Department of Homeland Security's National Cybersecurity and Communications Integration Center), Michael Assante (National Board of Information Security Examiners), Dean Turner (Symantec), and Mark Gandy (Dow Corning). See, notice. Location: Room 342, Dirksen Building.

2:00 PM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing on the nomination of Eugene Dodaro to be the Comptroller General of the Government Accountability Office (GAO). See, notice. Location: Room 342, Dirksen Building.

2:30 PM. The Senate Commerce Committee's (SCC) Subcommittee on Communications, Technology, and the Internet will hold a hearing titled "Television Viewers, Retransmission Consent, and the Public Interest". See, notice. Location: Room 253, Russell Building.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on four pending judicial nominees: Max Cogburn (USDC/WDNC), Marco Hernandez (USDC/DOre), Michael Simon (USDC/DOre), and Steve Jones (USDC/NDGa). See, notice. The SJC will webcast this event. Sen. Sheldon Whitehouse (D-RI) will preside. Location: Room 226, Dirksen Building.

Thursday, November 18

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act", and S 3728 [LOC | WW], the "Innovative Design Protection and Piracy Protection Act". The agenda also includes consideration of numerous judicial nominees: Robert Chatigny (USCA/2ndCir), Susan Carney (USCA/2ndCir), James Graves (USCA/5thCir), James Boasberg (USDC/DC), Amy Jackson (USDC/DC), Edward Davila (USDC/NDCal), Amy Totenberg (USDC/NDGa), James Shadid (USDC/CDIll), Sue Myerscough (USDC/CDIll), Paul Holmes (USDC/WDArk), Anthony Battaglia (USDC/SDCal), Diana Saldana (USDC/SDTex). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

1:00 - 2:00 PM. The Information Technology and Innovation Foundation (ITIF) and will host an event to release a report titled "The 2010 State New Economy Index". The speakers will be Robert Atkinson (ITIF) and Robert Litan (Kaufman Foundation). See, notice. This event if free and open to the public. Location: ITIF/ITIC, 6th floor, 1101 K St., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "The 21st Century Communications and Video Programming Accessibility Act". See, notice. CLE credits. Prices vary. Location: Arnold & Porter, 555 12th St., NW.

9:00 - 10:30 AM. The US Telecom will host a panel discussion titled "Rules of the Road for Behavioral Advertising: Balancing Consumer Privacy and Internet Innovation". The speakers will be Genie Barton (US Telecom), Christopher Olson (FTC), Stuart Ingis (Venable, counsel to Digital Advertising Alliance), and Kathleen Zanowik (Verizon). Breakfast will be served. See, notice. Location: US Telecom, Suite 400, 607 14th St., NW.

Day one of a three day event hosted by the Federalist Society titled "2010 National Lawyers Convention". See, notice and agenda. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

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