|Senate Confirms More Judges
12/19. The Senate confirmed Raymond Lohier to be a Judge of the
U.S. Court of Appeals (2ndCir) by a vote of 92-0
on Sunday, December 19, 2010. See,
Roll Call No. 284.
He is an Assistant U.S. Attorney for the Southern District of New York.
Before that, he worked in the Department of Justice's (DOJ)
Civil Rights Division. And before that, he worked for the law firm of
On Saturday, December 18, the Senate confirmed Albert Diaz to be a Judge of the
of Appeals (4thCir). See, Congressional Record, December 18, 2010, at Page S10704.
He is currently a state trial court judge in the
Courts. He is a Special Superior Court Judge for Complex Business Cases.
Before that, he worked for the law firm of
Hunton & Williams. And before that, he was a Marine Corps lawyer.
The Senate confirmed four persons to be District Court Judges on December 18,
and one on December 19.
This is in addition to the four judicial confirmations on December 17. See,
story titled "Senate Confirms Four Judicial Nominees" in TLJ Daily E-Mail Alert
No. 2,182, December 18, 2010.
On December 18, the Senate confirmed Ellen Hollander to be a Judge of the
U.S. District Court (DMd) by a vote of 95-0. See,
Roll Call No. 280. She is currently a Judge of the Maryland Court of Special
On December 18, the Senate confirmed Kimberly Mueller to be a Judge of the
U.S. District Court (EDCal). She is currently
a U.S. Magistrate Judge. Sen. Dianne Feinstein
(D-CA) stated in a
release that "It is senseless that Judge Mueller, a well-qualified and
uncontroversial nominee, had to wait over nine months for the Senate to take action to
confirm her. It is time to put an end to the obstruction and delay that have been holding
so many qualified judicial candidates hostage."
On December 18, the Senate confirmed Edmund Chang to be a Judge of the
U.S. District Court (NDIll). See, Congressional
Record, December 18, 2010, at Page S10704.
On December 18, the Senate confirmed Leslie Kobayashi to be a Judge of the
U.S. District Court (DHawaii). See, Congressional Record, December 18, 2010, at Page
And finally, on December 19, the Senate confirmed Carlton Reeves to be a
Judge of the U.S. District Court (SDMiss). See, Congressional Record,
December 19, 2010, at Page S10772.
There are several key nominees, who have been nominated by the President, have been approved
by the Senate Judiciary Committee (SJC), have not been withdrawn by the President, and remain on
Executive Calendar as of Monday, December 20, 2010:
- Susan Carney, U.S. Court of Appeals
- James Graves, U.S. Court of Appeals
- Goodwin Liu, U.S. Court of Appeals
- Mary Murguia, U.S. Court of Appeals (9thCir).
- Scott Matheson, U.S. Court of Appeals
- Kathleen O'Malley, U.S. Court of Appeals
- Beryl Howell, U.S. District Court
- Robert Wilkins, U.S. District Court (DC).
- James Boasberg, U.S. District Court (DC).
- Edward Chen, U.S. District Court
- Edward Davila, U.S. District Court (NDcal).
|Pending Executive Branch
12/19. The Senate's
Executive Calendar as of Monday, December 20, 2010, includes several
Presidential nominees for key executive branch offices.
These include the nomination of James Cole to be the
Deputy Attorney General (DAG), the number two
position at the Department of Justice (DOJ). The
position was previously held by David Ogden, who left after a short tenure over differences
with Attorney General Eric Holder. Gary Grindler is the acting DAG.
Other pending nominations that are significant for various technology related
areas of law and policy include:
- Eric Hirschhorn, nominated to be Under Secretary of Commerce for Export
Administration, a position with authority over licensing exports of
dual use products, including computers and software.
- Michael Punke, nominated to be Deputy U.S. Trade Representative.
- Islam Siddiqui, nominated to be the Chief Agricultural Negotiator in the
Office of the U.S. Trade Representative (OUSTR).
- Peter Diamond, nominated to be a member of the Board of Governors of the
Federal Reserve System.
|Nokia Files Patent Infringement Complaints
Against Apple in UK, Germany and Holland
12/16. Nokia filed patent infringement claims against Apple in several courts. It announced
release that it "filed claims in the UK High Court, Dusseldorf and Mannheim
District Courts in Germany and the District Court of the Hague, Netherlands,
alleging that Apple infringes Nokia patents in many of its products sold in
these countries, including iPhone, iPad and iPod Touch.
Nokia previously filed complaints alleging patent infringement in U.S. District Courts,
and a Section 337 claim in the U.S. International Trade
Commission (USITC). See, story titled "Nokia Files Section 337 Complaint Against
Apple" in TLJ Daily
E-Mail Alert No. 2,030, December 30, 2009.
Nokia's Paul Melin stated that "These actions add 13 further Nokia patents to
the 24 already asserted against Apple in the US International Trade Commission
and the Delaware and Wisconsin Federal courts".
Nokia added that "None of the asserted patents have been declared essential
to any wireless communication standard."
|UN Changes Composition of Working Group on
12/17. On December 10, 2010, the United Nations' (UN) announced in a
that its Working Group on Internet Governance (WGIG) will be composed only of
government representatives. Also, it will allocate members by region. For
example, the African region will be allocated the same number of members as the
Asian region -- three.
On December 17, Google published a
short piece titled "Governments Shouldn't Have a Monopoly on Internet
Governence". The author is Google's Vint Cerf.
Cerf wrote that "we don't believe governments should be allowed to grant
themselves a monopoly on Internet governance. The current bottoms-up, open
approach works -- protecting users from vested interests and enabling rapid
See also, story titled "Rep. Mary Mack Introduces Resolution on Internet
Governance" in TLJ Daily E-Mail Alert No. 2,183, December 19, 2010.
|Sen. Franken Lashes Out at Comcast/NBCU Deal,
Weak Net Neutrality Rules, and Fishy Connection Agreements
12/18. Sen. Al Franken (D-MN) gave a
speech in the Senate on Saturday,
December 18, 2010, in which he argued because there is a "growing threat of corporate
control on the flow of information in this country", the Federal Communications Commission
(FCC) must block the Comcast NBCU transaction and impose internet rules more stringent that
what the FCC is set to adopt on December 21.
Comcast was Sen. Franken's primary target in this speech. He said that it already has a
"near monopoly in the Internet business", a "virtual monopoly",
and "control of the Internet".
He spoke about the FCC's long pending review of the
Comcast NBC Universal transaction, the FCC's imminent adoption of rules regulating broadband internet
access service (BIAS), and Comcast's and Level 3's network connection agreement.
Franken (at right) wants the Comcast NBU deal blocked. He wants the FCC to write
tougher BIAS rules. And, he thinks that the Comcast Level 3 agreement regarding
connection of their networks is "fishy".
Comcast NBCU. He asserted that the Comcast NBCU transaction "will be
bad for consumers ... It will raise your cable bills". He also said that Comcast
and other BIAS providers have poor customer service, and "this is only going to
get worse if the FCC allows the merger between Comcast and NBC to sail through".
(The FCC released two papers on December 6, 2010, that contain results of a survey of BIAS
customers. 82% respond that they are either very satisfied or somewhat satisfied with customer
service. See, story titled "FCC Survey Shows That Broadband Customers
Like Broadband" in TLJ Daily E-Mail Alert No. 2,171, December 7, 2010.)
"We count on competition in this country to keep corporations in check, and
we have designed antitrust laws to ensure that companies are not getting too big
or too powerful." Hence, said Sen. Franken, "we need the Department of Justice
and the FCC to stop this merger."
He also predicted that if this transaction is permitted, then "it will be
only a year or two before we see AT&T trying to buy ABC/Disney, or Verizon
trying to buy CBS/Viacom".
He also criticized Comcast for negotiating an agreement with Level 3 under which
Level 3 pays Comcast to connect to its network. He termed it "a little fishy".
BIAS Regulation. He also criticized FCC Chairman Julius Genachowski's proposal to
regulate BIAS. He said that the unreleased rules to be adopted on December 21 are a
"flawed net neutrality proposal", that will make it "easier for large media
conglomerates-like Comcast-to do nothing short of controlling the Internet".
"Unfortunately, the proposal before the FCC -- which I'll admit I haven't seen because
it's not been made public", said Sen. Franken, "would allow Internet providers to
create a fast lane for companies that can afford to pay a premium. It would allow mobile
networks, like AT&T and Verizon Wireless, to completely block content and applications
whenever it suits them -- for either political or business reasons."
"If the FCC passes this weak rule, Verizon will be able to cut-off access to
the Google Maps app on your phone and force you to use their own mapping
program, Verizon Navigator, even if it is not as good. And even if they charge
money, when Google Maps is free."
Moreover, he asserted, "there is nothing to prevent those same corporations from
censoring political speech."
FCC Process. He also discussed the nature of the administrative
process, offering both his observations, and normative assessments. He stated
that "the FCC is an independent agency. Independent agencies are non-partisan.
They are not beholden to Congress or to the President, and they certainly should
not be beholden to the industries they regulate."
He continued that "when I hear that the FCC is considering a net neutrality
proposal that is supported by the largest media corporations in America, I am
suspicious-and you should be too. The FCC should not be worrying about getting
the sign-off from the very corporations that it is supposed to be regulating."
He also predicted that the FCC will soon conclude its review of Comcast NBCU
transaction. He argued that the FCC "needs
to do this in the light of day -- not hidden in the middle of Christmas and New
Year's. The American people have a right to know about this merger. I will be
supremely disappointed if approval of the merger is slipped through when most of
America is unwrapping presents".
This speech is also in the Congressional Record, December 18, 2010, at
See also, story titled "Sen. Franken Urges FCC Not to Adopt Genachowski's
Proposal" in TLJ Daily E-Mail Alert No. 2,178, December 14, 2010.
|This issue contains the following items:
• Senate Confirms More Judges
• Pending Executive Branch Nominations
• Nokia Files Patent Infringement Complaints Against Apple in UK, Germany and Holland
• UN Changes Composition of Working Group on Internet Governance
• Sen. Franken Lashes Out at Comcast/NBCU Deal, Weak Net Neutrality Rules, and Fishy
• Supreme Court Denies Cert in Luxpro v. Apple
• More News
New items are highlighted in
|Monday, December 20
The House will not meet.
The Senate will meet at 10:00 AM.
EXTENDED TO JANUARY 31.
Deadline to submit initial
comments to the Library of Congress's (LOC) Copyright
Office (CO) in response to its Notice of Inquiry (NOI) regarding federal coverage of
sound recordings fixed before February 15, 1972.
See, notice in the Federal
Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC
Docket No. 2010-4. See also, story titled "Library of Congress Issues NOI on Extending
Copyright Act to Pre 1972 Sound Recordings" in
TLJ Daily E-Mail Alert No. 2,150,
November 8, 2010. See also,
in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages
|Tuesday, December 21
The House will meet at 10:00 AM for
legislative business. The House might take up HR 5116
the "America COMPETES Reauthorization Act of 2010".
10:30 AM. The Federal Communications Commission
(FCC) will hold an event titled "open meeting". The
includes adoption of two items: broadband internet access service (BIAS) rules and a 911
notice of inquiry (NOI). See, story titled "FCC Releases Agenda for December 21
Meeting" in TLJ Daily E-Mail Alert No. 2,179, December 15, 2010. Location:
FCC, Commission Meeting Room, 445 12th St., SW.
RESCHEDULED FOR JANUARY 27.
12:00 NOON - 2:00 PM. The DC Bar
Association will host an event titled "False Patent Marking: Now What?".
The speakers will be Elizabeth Winston
(Catholic University law school), Robert
Shaffer (Finnegan), Maureen Browne (Covington
& Burling). See,
U.S.C. § 292, regarding false marking. See also, the December 28, 2009,
[16 pages in PDF] of the U.S. Court of Appeals
(FedCir) in The Forest Group, Inc. v. Bon Tool Company construing Section 292. See
also, HR 4954 [LOC
an untitled bill, and HR 6352
WW], the "Patent
Lawsuit Reform Act of 2010"; both would amend Section 292; the House has passed
neither. And see, story titled "Representatives Introduce Bill to Amend Patent Act
Regarding Remedies for False Markings" in
TLJ Daily E-Mail Alert No.
2,067, March 30, 2010. The price to attend ranges from $40 to $55. For more information,
contact 202-626-3463. See,
notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.
|Wednesday, December 22
No events listed.
|Thursday, December 23
No events listed.
|Friday, December 24
Christmas Day (observed). This is a federal holiday. See,
Office of Personnel Management's (OPM)
page titled "2010 Federal Holidays".
|Monday, December 27
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM)
regarding regulating the billing and notice practices of mobile service providers.
The FCC adopted and released this NPRM on October 14, 2010. It is FCC 10-180 in CG Docket
Nos. 10-207 and 09-158. See,
notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72773-72777.
See also, story titled "FCC Adopts Bill Shock NPRM" in
TLJ Daily E-Mail
Alert No. 2,142, October 19, 2010.
Deadline to submit comments to the
Copyright Office (CO) in response to
its notice of proposed rulemaking (NPRM) regarding notices of termination of
certain grants of transfers and licenses of copyright under
17 U.S.C. § 203.
See, notice in
the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages
Deadline to submit comments to the Department of Transportation's (DOT)
Intelligent Transportation Systems Program Advisory Committee (ITSPAC) in
advance of its meeting on January 6-7, 2011, in Oakland, California. See,
notice in the
Federal Register, December 14, 2010, Vol. 75, No. 239, at Page 77955.
|Supreme Court Denies Cert in Luxpro
12/13. The Supreme Court denied certiorari in Luxpro v. Apple, a case regarding
trial venue in complex technology related civil litigation. See, December 13, 2010
List, at page 3, and Supreme Court
This lets stand the April 19, 2010,
opinion of the
U.S. Court of Appeals (8thCir), which granted
Apple's petition for writ of mandamus directing the U.S. District Court (WDArk) to transfer
a case to the U.S. District Court (NDCal).
In the underlying District Court action, Luxpro, a manufacturer and
distributor of digital music players based in Taiwan, filed a complaint against
Apple, another manufacturer of digital music players, alleging that Apple
engaged Luxpro in abusive litigation in Germany and Taiwan.
The Court of Appeals wrote that "The convenience of the parties and
witnesses, and the relevant interests of justice, favor transfer of this case
from the Western District of Arkansas to the Northern District of California.
The district court, however, essentially treated as dispositive Luxpro's choice
of a forum with no connection to the lawsuit, bolstered only by statistics
concerning median time from filing to trial in Western Arkansas. In our view,
this was a clear abuse of discretion. For the foregoing reasons, we grant
Apple's petition for writ of mandamus and direct that the district court
transfer this action to the Northern District of California."
This case is Luxpro Corp. v. Apple, Inc., Supreme Court of the U.S.,
Sup. Ct. No. 10-615, a petition for writ of certiorari to the U.S. Court of
Appeals for the 8th Circuit, App. Ct. 09-3689.
12/16. Rep. Jay Inslee (D-WA),
Rep. Mary Mack (R-CA), Rep.
Anna Eshoo (D-CA), Rep. Tom Cole (R-OK),
Rep. Dan Kildee (D-MI),
Rep. Peter DeFazio (D-OR), and
Rep. Raul Grijalva (D-AZ) introduced HR 6530
WW], a bill to amend
U.S.C. § 254 (regarding universal service) and
U.S.C. § 410 to put a representative of Indian tribes on the Federal-State Joint
Board. This bill was referred to the House
Commerce Committee (HCC).
12/16. The U.S. Court of Appeals (4thCir) issued
opinion [21 pages in PDF] in Verizon v. Core Communications, an
interconnection dispute arising involving
U.S.C. § 251, and the Federal Communications Commission's (FCC) rules thereunder. The
Court of Appeals reversed the judgment of the District Court. The Court of Appeals held that
Verizon Maryland violated the FCC's rules when it refused to provide the competitive local
exchange carrier (CLEC), Core Communications, with the technically feasible, non-discriminatory
interconnection that Core had requested. This case is Verizon Maryland, Inc. v. Core
Communications, Inc., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 09-1839,
an appeal from the U.S. District Court for the Maryland, at Baltimore, D.C. No.
1:08-cv-00503-JFM. Judge Frederick Motz presiding. Judge Gregory wrote the opinion of the
Court of Appeals, in which Judges Wilkinson and King joined.
12/14. The Phoenix Center for
Advanced Legal and Economic Public Policy Studies released a
paper [37 pages in
PDF] titled "Wobbling Back to the Fire: Economic Efficiency and the Creation of a
Retail Market for Set-Top Boxes". The authors are the Phoenix Center's Randolph
Beard, George Ford, Lawrence Spiwak, and Michael Stern.
12/13. The Supreme Court denied certiorari in Benun v. Fujifilm,
a patent infringement case involving technology for single use cameras. See,
List at page 3, and Supreme Court
docket. This lets stand the May 27, 2010,
[11 pages in PDF] of the U.S. Court of Appeals
(FedCir). This case is Jack Benun, et al. v. Fujifilm Corp., Supreme Court of
the U.S., Sup. Ct. No. 10-486, a petition for writ of certiorari to the U.S. Court of Appeals
for the Federal Circuit, App. Ct. No. 2009-1487.
|About Tech Law
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