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January 31, 2011, Alert No. 2,195.
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Senate Judiciary Committee Begins Consideration of Patent Bill

1/27. Sen. Patrick Leahy (D-VT), Sen. Charles Grassley (R-IA), Sen. Orrin Hatch (R-UT), and others introduced S 23 [LOC | WW], the "Patent Reform Act of 2011", on January 25, 2011. The bill was on the agenda for the Senate Judiciary Committee's (SJC) executive business meeting on January 27, but was held over until the meeting of February 3.

This bill provides a first inventor to file rule, and addresses damages for patent infringement, post grant review, the best mode requirement, and venue in patent cases, among other topics. The text of S 23, and Sen. Leahy's statement, is in the January 25, 2011, issue of the Congressional Record, beginning at Page S130.

Sen. Grassley requested that it be held over for one week

Sen. Hatch said to Sen. Leahy, the Chairman of the SJC, at the meeting that "I would like to compliment you on this patent bill. To make that a focal point at the beginning of this session is very very important. We haven't amended the patent laws for well over fifty years. It is time that we do it, and go to conference, and hopefully come up with a bill that both sides will enthusiastically support. Without your leadership I don't think that can happen, and we need to do that."

Sen. Leahy said that Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee (HJC), "is committed to doing something". Sen. Leahy also compared this process to a civil litigation. "Sometimes you settle the case on the courthouse steps". He concluded, "It is jury drawing time."

Sen. Grassley said that "it is going to spur innovation and economic growth. ... I am supportive of these efforts and I am hopeful that we will see comprehensive patent reform implemented expeditiously in this Congress".

He also said the he wants this Congress to "pass legislation to rid the courts of frivolous lawsuits".

HR 243 [LOC | WW], the "Patent Lawsuit Reform Act of 2011", introduced by Rep. Robert Latta (R-OH) on January 7, 2011, deals only with 35 U.S.C. 292, and the issue of penalties for false markings.

Judicial Nominees Held Over

1/27. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over all judicial nominees on the agenda: James Graves (USCA/5thCir), Edward Davila (USDC/NDCal), Amy Jackson (USDC/DC), Max Cogburn (USDC/WDNC), Marco Hernandez (USDC/DOre), Steve Jones (USDC/NDGa), Amy Totenberg (USDC/NDGa), James Boasberg (USDC/DC), Paul Holmes (USDC/WDArk), Anthony Battaglia (USDC/SDCal), and Diana Saldana (USDC/SDTex).

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, requested that all nominations be held over for one week. Sen. Patrick Leahy (D-VT), the Chairman of the SJC, announced that all are held over, but complained about Republican refusal to hold votes in the full Senate on some nominees who have the support of their home state Senators, and have been approved by the SJC.

Sen. Orrin Hatch (R-UT), who has served on the SJC for over thirty years, noted that over the decades both parties have blocked nominees. He said that "we have to work together better on Judges". Sen. Hatch also said that "it is insane to have to have a vote on everybody who comes to the floor".

President Obama's judicial nominees will face more difficulties in being confirmed in the 112th Congress. The decreased size of the Democrats' majority in the Senate will make it easier for Republican opponents of certain nominees to sustain a filibuster.

The discussion at this SJC meeting regarding the qualifications of particular nominees, and what in general ought to be the criteria for assessing judicial nominees, again lacked any mention of expert knowledge in core areas of law that fall within federal jurisdiction, such as patent, copyright, communications, and antitrust law.

Obama Picks Cablevision Lawyer for SDNY

1/26. President Obama nominated Paul Oetken to be a Judge of the U.S. District Court for the Southern District of New York. See, White House news office release and release.

He is SVP and Associate General Counsel of Cablevision Systems Corporation. Before that, he worked for the law firm of Debevoise & Plimpton.

Before that, he worked in the Department of Justice's (DOJ) Office of Legal Counsel (OLC) and the White House Counsel's Office in the Clinton administration. And before that, he worked for the law firm of Jenner & Block.

More Judicial Appointments

1/27. Sen. Ben Cardin (D-MD) is leaving the Senate Judiciary Committee (SJC). He will join the Senate Finance Committee (SFC). Sen. Patrick Leahy (D-VT) and Sen. Orrin Hatch (R-UT) praised his service on the SJC at the January 27, 2011 meeting of the SJC.

1/26. President Obama nominated Henry Floyd to be a Judge of the U.S. Court of Appeals (4thCir). He has been a Judge of the U.S. District Court (DSCar) since 2003. Before that he was a South Carolina state court judge before that. See, White House news office release and release.

1/26. President Obama nominated Michael Green to be a Judge of the U.S. District Court for the Western District of New York. See, White House news office release and release.

1/26. President Obama nominated Nelva Ramos to be a Judge of the U.S. District Court for the Southern District of Texas. See, White House news office release and release.

1/26. President Obama nominated Natasha Silas to be a Judge of the U.S. District Court for the Northern District of Georgia. See, White House news office release and release.

1/26. President Obama nominated Linda Walker to be a Judge of the U.S. District Court (NDGa). See, White House news office release and release.

Obama Picks Verrilli to Be Solicitor General

1/26. President Obama nominated Donald Verrilli to be Solicitor General (SG) of the United States, at the Department of Justice (DOJ). See, White House news office release and release. If confirmed, he would replace former SG Elena Kagan, who is now a Justice of the Supreme Court. Neal Katyal is the acting SG.

Verrilli has recently worked for the Obama administration at the DOJ and White House, working on, among other issues, the state secrets privilege. The state secrets privilege is a judicial privilege, belonging to the executive, against disclosure of information in judicial processes, that may harm national security.

The Obama administration, like the Bush administration before it, has aggressively asserted the privilege not merely to preclude disclosure of certain information, but to preclude entire adjudicatory processes, in effect to confer immunity upon itself and the companies that assist it in conducting surveillance activities.

The privilege is not inherently a technology related matter. It has been invoked in some cases, such as those involving rendition of terrorists to foreign governments, that are not technology related. However, it is also invoked in cases that do involve information and communications technologies (ICT), such as suits involving warrantless wiretaps.

See also, story titled "Holder Issues Memorandum on State Secrets Privilege" in TLJ Daily E-Mail Alert No. 1,988, September 24, 2009, subsection titled "TLJ Analysis" in story titled "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009, and subsection titled "State Secrets Privilege" in story titled "House Judiciary Subcommittee Holds Hearing on Civil Liberties and ICT Issues" in TLJ Daily E-Mail Alert No. 2,177, December 13, 2010.

Both the House and the Senate considered bills regarding the privilege in the 110th and 111th Congresses. However, no bill became law. See for example, S 417 [LOC | WW], the "State Secrets Protection Act", and HR 984 [LOC | WW], the "State Secret Protection Act of 2009", both from the 111th Congress.

Verrilli is currently Deputy Counsel to the President. Before that, he was an Associate Deputy Attorney General.

Before that, Verrilli was a long time partner in the Washington DC office of Jenner & Block, and an entertainment industry copyright lawyer. For example, Verrilli argued before the Supreme Court on behalf of the movie industry in the peer to peer infringement case, MGM v. Grokster. See, opinion [55 pages in PDF] and stories titled "Supreme Court Rules in MGM v. Grokster" and "Reaction to the Supreme Court's Opinion in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Verrilli has also represented communications companies. For example, he successfully argued before the Supreme Court in FCC v. Next Wave Personal Communications, 537 U.S. 293. See, January 27, 2003, opinion, and story titled "Supreme Court Rules Against FCC in NextWave Case" in TLJ Daily E-Mail Alert No. 592, January 28, 2003.

Obama Picks Cohen for Treasury Position

1/26. President Obama nominated David Cohen to be the Department of the Treasury's (DOT) Under Secretary for Terrorism and Financial Crimes, the position previously held by Stuart Levey. See, White House news office release and release.

Cohen has been the DOT's Assistant Secretary for Terrorist Financing since May of 2009. Before that he was briefly Counselor to the Secretary of Treasury. See, March 8, 2009 release. Before that he worked for the law firm of Wilmer Hale.

The primary task of this Under Secretary is to attempt to monitor and limit financing of terrorism. In performing this task, the DOT acquires personal and financial transactions data, and builds electronic databases. See, June 23, 2006 story in the New York Times by Eric Lichtblau and James Risen titled "Bank Data Is Sifted by U.S. in Secret to Block Terror".

In This Issue
This issue contains the following items:
  Senate Judiciary Committee Begins Consideration of Patent Bill
  Judicial Nominees Held Over
  Obama Picks Cablevision Lawyer for SDNY
  Obama Picks Verrilli to Be Solicitor General
  Obama Picks Cohen for Treasury Position
Washington Tech Calendar
New items are highlighted in red.
Monday, January 31

The House will be in recess Monday, January 31 through Friday, February 4.

The Senate will meet at 2:00 PM.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "How Much Bandwidth Is Used For Online Piracy?". The speakers will include David Price (Envisional). See, notice. Location: ITIF/ITIC, 1101 K St., NW.

5:00 PM. Deadline to submit comments to the National Science Foundation (NSF) regarding the Executive Office of the President's (EOP) President's Council of Advisors on Science and Technology's (PCAST) paper [148 pages in PDF] titled "Designing a Digital Future: Federally Funded Research and Development in Networking and Information Technology". See, notice in the Federal Register, December 23, 2010, Vol. 75, No. 246, Pages 80853-80854.

EXTENDED TO FEBRUARY 18. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry (NPRM & NOI) [36 pages in PDF] regarding expanding the FCC's location surveillance mandates for mobile communications and devices. The FCC adopted and released this item on September 23, 2010. It is FCC 10-177 in PS Docket No. 07-114 and WC Docket No. 05-196. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67321-67333. See, extension notice in the Federal Register, January 7, 2011, Vol. 76, No. 5, at Pages 1126-1127.

Extended 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, extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its document [122 pages in PDF] titled "Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers". This document proposed an online do not track regime. See also, story titled "Divided FTC Proposes Do Not Track Regime" in TLJ Daily E-Mail Alert No. 2,169, December 5, 2010.

Tuesday, February 1

The Senate will meet at 10:30 AM. It will begin consideration of S 223 [LOC | WW], the FAA reauthorization bill.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "Bridging the Digital Divide: Is Community Wireless the Solution?". The speakers will be Sascha Meinrath (NAF), Laura Forlano (Yale Law School), Benjamin Lennett (NAF), Gwen Shaffer (UC Irvine), Aaron Kaplan (Funkfeuer, Austria), Socrates Panoussiou (Athens Wireless Metropolitan Network), Alison Powell (London School of Economics), and Tom Glaisyer (NAF), See, notice. Location: NAF, Suite 400, 1899 L St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security and Young Lawyers Committees will host a brown bag lunch titled "Where Did U Hear That? Social Networking and Data Privacy Issues". For more information, contact Karen Henein at khenein at willkie dot com. Location: Willkie Farr & Gallagher, 1875 K St., NW.

Wednesday, February 2

No events listed.

Thursday, February 3

8:30 AM - 1:30 PM. The New America Foundation (NAF) and others will host a half day conference titled "Here Be Dragons: Governing a Technologically Uncertain Future". See, notice. Location: Google, 1101 New York Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security and Young Lawyers Committees will host a brown bag lunch titled "Where Did U Hear That? Social Networking and Data Privacy Issues". For more information, contact Karen Henein at khenein at willkie dot com. Location: Willkie Farr & Gallagher, 1875 K St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 23 [LOC | WW], the "Patent Reform Act of 2011", and S 193 [LOC | WW], the "USA PATRIOT Act Sunset Extension Act of 2011". It also includes consideration of numerous judicial nominees: James Graves (USCA/5thCir), Susan Carney (USCA/2ndCir), Edward Davila (USDC/NDCal), Amy Jackson (USDC/DC), James Boasberg (USDC/DC), Max Cogburn (USDC/WDNC), Marco Hernandez (USDC/DOre), Michael Simon (USDC/DOre), Steve Jones (USDC/NDGa) Amy Totenberg (USDC/NDGa), Paul Holmes (USDC/WDArk), Anthony Battaglia (USDC/SDCal), James Shadid (USDC/CDIll), Sue Myerscough (USDC/CDIll), and Diana Saldana (USDC/SDTex). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

Friday, February 4

9:00 AM - 2:00 PM. The Free State Foundation (FSF) will host an event titled "Third Annual Winter Telecom Policy Conference". The speakers will include FCC Commissioner Meredith Baker, Jonathan Baker (FCC), Kathy Brown (Verizon), Jim Cicconi (AT&T), Steve Largent (CTIA), Blair Levin (Aspen Institute), Kyle McSlarrow (NCTA), Paul de Sa (FCC), Deborah Tate (Free State Foundation), Joe Waz (Comcast), and Christopher Yoo (University of Pennsylvania Law School). Location: National Press Club, 13th Floor, 529 14th St., NW.

Monday, February 7

10:00 - 11:30 AM. The New America Foundation (NAF) will host a panel discussion titled "Two Perspectives on the National Broadband Plan: A Conversation with Craig Settles and Blair Levin". The speakers will be Craig Settles (Successful.com), Blair Levin (Aspen Institute), Sascha Meinrath (NAF), Amy Schatz (Wall Street Journal), Stacey Higginbotham (GigaOM), and Cecilia Kang (Washington Post). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

11:59 PM. Deadline to submit comments to the National Institute of Standards and Technology (NIST) in response to its request comments on "the effectiveness of Federal agencies' participation in the development and implementation of standards and conformity assessment activities and programs." See, notice in the Federal Register, December 8, 2010, Vol. 75, No. 235, at Pages 76397-76399.

11:59 PM. Deadline to submit applications to the Federal Communications Commission (FCC) for membership on its Consumer Advisory Committee. See, notice in the Federal Register, January 20, 2011, Vol. 76, No. 13, at Pages 3633-3634.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Third Notice of Proposed Rulemaking (3rdNPRM) [43 pages in PDF] regarding technical rules for the Fixed-Satellite Service in the 37.5-42.5 GHz band. The FCC adopted this item on October 29, 2010, and released the text on November 1, 2010. It is FCC 10-186 in IB Docket No. 97-95. See, notice in the Federal Register, November 22, 2010, Vol. 75, No. 224, at Pages 71064-71066.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [6 pages in PDF] regarding whether the FCC should conduct a rulemaking proceeding to create a new program that would give preferential treatment in bidding for spectrum licenses to "individuals and entities who have overcome substantial disadvantage", such as people with "physical disabilities or psychological disorders". This PN is DA 10-2259 in GN Docket No. 10-244. See, notice in the Federal Register, December 27, 2010, Vol. 75, No. 247, at Pages 81274-81276.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) [45 pages in PDF] regarding modifications to the methodology in the digital Individual Location Longley Rice (ILLR) model to improve its predictive accuracy. The FCC adopted this FNPRM on November 22, 2010. It is one of four items related to the Satellite Television Extension and Localism Act (STELA) released on November 23, 2010. See also, story title "FCC Releases Four STELA Items" in TLJ Daily E-Mail Alert No. 2,164, November 24, 2010. This FNPRM is FCC 10-194 in ET Docket No. 10-152. See also, notice in the Federal Register, December 22, 2010, Vol. 75, No. 245, at Pages 80425-80426.

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