2/7. President Obama gave a speech to the U.S. Chamber of Commerce in Washington DC in which he focused on the importance of innovation to the economy.

However, he only made brief mention of patent reform and extending the research and development tax credit.

He said, well into his lengthy address, that "We're reforming our patent system so innovations can move more quickly to market." He said "I've also proposed a bigger, permanent tax credit for all the research and development your companies do in this country. I believe that is a priority."

He spoke in more detail about government spending on education and research. He also advocated things that are accomplished by the private sector, such as building and improving communications networks.

President Obama said that "The globalization of our economy means that businesses can now open up a shop, employ workers and produce their goods wherever an Internet connection exists."

He said that "We need to out-innovate, we need to out-educate, we need to out-build our competitors. We need an economy that's based not on what we consume and borrow from other nations, but what we make and what we sell around the world. We need to make America the best place on Earth to do business."

"We will upgrade our transportation and communication networks so you can move goods and information more quickly and more cheaply. We'll invest in education so that you can hire the most skilled, talented workers in the world. And we'll work to knock down barriers that make it harder for you to compete, from the tax code to the regulatory system."

President Obama also addressed innovation in his speech to the Congress on January 25, 2011. He made numerous references to computing, the internet, innovation, and information technology companies. However, other than vague references to government funded research, STEM education, and immigration policy, he did not discuss technology related legislation or policy.

Prior to these two speeches, the President had spoken little and infrequently about IT and innovation.

"We live and do business in the information age," said Obama in his speech to the Congress. "Today, just about any company can set up shop, hire workers, and sell their products wherever there’s an internet connection. Meanwhile, nations like China and India realized that with some changes of their own, they could compete in this new world. And so they started educating their children earlier and longer, with greater emphasis on math and science. They're investing in research and new technologies. Just recently, China became home to the ... world's fastest computer."

He said that "No country has more successful companies, or grants more patents to inventors and entrepreneurs." But, he said nothing about pending patent reform legislation, or funding for the U.S. Patent and Trademark Office (USTPO).

He also said that "Our free enterprise system is what drives innovation. But because it's not always profitable for companies to invest in basic research, throughout history our government has provided cutting-edge scientists and inventors with the support that they need. That’s what planted the seeds for the Internet. That's what helped make possible things like computer chips and GPS."

"In a few weeks, I will be sending a budget to Congress that helps us meet that goal. We'll invest in biomedical research, information technology, and especially clean energy technology".

"Maintaining our leadership in research and technology is crucial to America’s success. But if we want to win the future -- if we want innovation to produce jobs in America and not overseas -- then we also have to win the race to educate our kids." He continued that "we want to prepare 100,000 new teachers in the fields of science, technology, engineering, and math".

He also said that "Others come here from abroad to study in our colleges and universities. But as soon as they obtain advanced degrees, we send them back home to compete against us. It makes no sense."

He also discussed the operations of communications companies. "Within the next five years, we will make it possible for business to deploy the next generation of high-speed wireless coverage to 98% of all Americans. This isn’t just about a faster internet and fewer dropped calls. It’s about connecting every part of America to the digital age. It’s about a rural community in Iowa or Alabama where farmers and small business owners will be able to sell their products all over the world. It’s about a firefighter who can download the design of a burning building onto a handheld device; a student who can take classes with a digital textbook; or a patient who can have face-to-face video chats with her doctor."

Finally, he discussed trade. He said that "last month, we finalized a trade agreement with South Korea", and "I ask this Congress to pass it as soon as possible." And, he said that the US will "continue our Asia Pacific and global trade talks".

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), praised Obama's reference to patent reform. He stated in a release on February 7 that "Innovation drives the nation’s economy, and that entrepreneurial spirit can only be protected by a patent system that promotes invention and spurs new ideas. As the President said today, 'we're reforming our patent system so innovations can move more quickly to market.' This administration is committed to reinvigorating the economy, and investing in the `next generation of big ideas.´"

Sen. Leahy continued that "A modernized patent system -- one that puts American entrepreneurs on the same playing field as those throughout the world -- is a key to that success. This is an idea that stretches across the political spectrum. That is why the Patent Reform Act of 2011 received unanimous support from the Senate Judiciary Committee, and why it has been a top priority. The Senate should consider this job-creating legislation without delay."

2/3. The Senate Judiciary Committee (SJC) amended and approved S 23 [LOC | WW], the "Patent Reform Act of 2011". The final vote was unanimous, with Sen. Jon Cornyn (R-TX) voting present. However, many members stated that they plan to bring up further amendments or objections during consideration by the full Senate.

The SJC approved a managers' amendment [9 pages in PDF], and Sen. Dianne Feinstein's (D-CA) and Sen. Jon Kyl's (R-AZ) amendment [1 page in PDF] regarding damages.

The managers' amendment, among other things, would reverse the effect of the Supreme Court's opinion in Holmes Group v. Vornado, regarding federal jurisdiction in patent cases. It also makes technical changes.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, said that this bill will "improve the quality of patents", and that "the Obama administration supports these efforts".

Sen. Kyl said that "this is the third time that we have marked up this bill", and that he voted against the bill in committee in 2007 and 2009. He said that "important improvements have been made", and this bill is now a "good compromise". Hence, he supports it.

However, he expressed concerns about the language for inter partes reexamination, and that the bill does not go far enough to reign in the doctrine of inequitable conduct.

Business Method Patents. Sen. Charles Schumer (D-NY) offered, with Sen. Kyl, but withdrew, an amendment regarding business method patents.

He argued that "our amendment addresses the scourge of business method patents that is currently plaguing the financial sector. The patent system in the U.S. is designed to protect innovation, inventions, and investments. Business method patents are anathema to that protection" because they are given for common practices.

He continued that often patents are given for widespread practices, of which the U.S. Patent and Trademark Office (USPTO) is unaware, so "bad patents are issued". He said that this rewards clever litigants. He said that his amendment would give the targets of such litigation an administrative remedy at the USPTO in which they could introduce prior art.

Sen. Schumer said that he will vote for the bill in committee, but may not vote for the bill on the Senate floor if his concerns are not addressed.

Sen. Leahy said "let's keep working".

Sen. Dianne Feinstein (D-CA) said that she is "concerned" about business method patents, such as Amazon's "one click purchasing" patent, but "I wonder if we should be there at all in this bill".

Fee Diversion. Sen. Tom Coburn (R-OK) offered and withdrew an amendment to limit the diversion of fees paid to the USPTO.

He said that "If somebody is paying a fee, it should be utilized for that purpose", and "not to run other aspects of the federal government". He said that he plans to offer this amendment on the Senate floor.

Sen. Grassley, Sen. Orrin Hatch (R-UT), Sen. Sheldon Whitehouse (D-RI), Sen. Jon Cornyn (R-TX), and Sen. Amy Klobuchar (D-MN) expressed support for Sen. Coburn's amendment. Sen. Cornyn argued that adequate USPTO funding is essential to patent quality. Sen. Hatch said that USPTO fee diversion is "despicable" and "a tax on innovation".

Sen. Richard Durbin (D-IL), who sits on the Senate Appropriations Committee (SAC), expressed concern about taking oversight authority away from the SAC.

Federal Jurisdiction. Section 17 of the managers' amendment is titled "Intellectual Property Jurisdiction Clarification Act of 2011".

It would amend 28 U.S.C. § 1338 to provide that "No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights."

Also, it would amend 28 U.S.C. § 1295(a)(1) to provide that the U.S. Court of Appeals (FedCir) shall have jurisdiction over "an appeal from a final decision of a district court ... in any civil action arising under, or in any civil action in which a party has asserted a compulsory counterclaim arising under, any Act of Congress relating to patents or plant variety protection".

House Judiciary Committee (HJC) members have sought unsuccessfully to enact similar legislation since the Supreme Court issued its opinion in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002). See, story titled "Supreme Court Rules on Appellate Jurisdiction of Federal Circuit" in TLJ Daily E-Mail Alert No. 443, June 4, 2002.

In the Holmes case the Supreme Court held that the Federal Circuit's appellate jurisdiction cannot be based solely upon a patent counterclaim. Critics of the Holmes opinion have argued that this reduces federal control over IP cases, reduces uniformity of patent law, and encourages forum shopping.

Other Issues. Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, praised the bill's inclusion of a provision limiting patents on tax strategies.

Sen. Feinstein did not offer her amendment to the first inventor to file provision of the bill.

Sen. Schumer did not offer his amendment on "generic drugs".

1/31. The Government Accountability Office (GAO) released a report [118 pages in PDF] on January 14, 2011, titled "H-1B Visa Program: Reforms Are Needed to Minimize the Risks and Costs of Current Program".

Sen. Charles Grassley (R-IA) and Sen. Dick Durbin (D-IL) sent a letter [PDF] on January 31, 2011, to the DHS regarding this GAO report.

Information technology companies have long relied upon, and lobbied for extensions and expansions of, this program. This report also states that it is plagued with fraud and abuse.

See also, story titled "H1B Visas, Tech Sector Jobs, and Visa Fraud" in TLJ Daily E-Mail Alert No. 1,808, August 7, 2008.

The GAO report offers this description. "The current H-1B program, which permits U.S. employers to hire foreign workers in specialty occupations, was authorized in 1990.The same law also placed a cap of 65,000 on H-1B visas issued per fiscal year beginning in fiscal year 1992. However, since then, the cap has fluctuated with legislative changes, reaching a peak of 195,000 in fiscal years 2001 to 2003. Today, the cap is set at 65,000 ..." (Footnote omitted.)

The Department of Homeland Security's (DHS) U.S. Customs and Immigration Service (USCIS) has primary responsibility for administering the H1B program. However, the Department of State and Department of Labor are also involved.

The report states that "Congress sought to strike a difficult balance between satisfying the needs of a wide variety of businesses for high-skilled foreign labor while protecting access to jobs and appropriate compensation for U.S. workers."

"The initial temporary nature of the program and the annual cap were key tools to protect U.S. workers. Over its history, however, Congress has made numerous changes to the program, including broadening the eligibility requirements and allowing for exemptions to the cap and for H-1B workers to pursue long-term residency."

The report finds that as a result "the number of H-1B workers approved to enter the United States each year greatly exceeds the numeric limit established by the cap, and the majority of applicants are categorized as entry-level. Moreover, a substantial proportion appears to remain in the country beyond the 6-year visa period in pursuit of permanent residency."

The report also finds that "Lack of information on the total H-1B workforce makes it impossible to understand the long-term impact of the program and leaves the program vulnerable to fraud and abuse -- a known issue in this program." The report also points to the lack of information sharing within and between federal agencies, limitations on enforcement, and the use of intermediary staffing companies, furthers fraud, abuse and lack of enforcement.

The report also addresses business's concerns about the structure of the program.

Also, it notes that "start-up companies, which some argue are the backbone of innovation in the United States, cannot use the H-1B visa for their employees until their company is fully established."

The report concludes that "the program may not be used to its full potential and may be detrimental in some cases. Some improvements can be made."

Sen. Grassley and Sen. Durbin stated in their letter to the DHS that "We are committed to restoring integrity to the H-1B visa program". The two Senators asked for explanations and elaborations of many of the findings contained in the GAO report.

The two stated in a release that "The H-1B visa program is riddled with loopholes and is in need of serious reform. It's time to put integrity back into the program, and ensure that the program works for American workers and businesses".

President Obama alluded to H1B visas in his speech to the Congress on January 25, 2011. He said that "Others come here from abroad to study in our colleges and universities. But as soon as they obtain advanced degrees, we send them back home to compete against us. It makes no sense."

The House will not meet. See, House Majority Leader calendar for week of February 7.

The Senate will meet at 2:00 PM. It will resume consideration of S 223 [LOC | WW], the FAA reauthorization bill.

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.

The House will meet at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider HR 514 [LOC | WW], a bill to extend expiring provisions of surveillance law, under suspension of the rules. See, House Majority Leader calendar for week of February 7.

8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "Meet The Chinese Embassy IP Attache". The speakers will be Fuli Chen (Intellectual Property Rights Attache for the Chinese Embassy to the US), Steven Adkins (Orrick), Drew Clark, and others. Breakfast will be served. This event is free and open to the public. See, notice and registration page. This event is also sponsored by the National Cable & Telecommunications Association (NCTA) and the Public Knowledge (PK). Location: Clyde's of Gallery Place, 707 7th St., NW.

9:20 AM - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will hold a partially closed meeting. The agenda for the closed portion of the event includes "results of a cyber security exercise". See, notice in the Federal Register, January 24, 2011, Vol. 76, No. 15, at Pages 4123-4124. Location: Capital Ballroom, Embassy Suites -- Convention Center, 900 10th St., NW.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:15 PM. The Federal Communications Commission (FCC) will host an event titled "Current Audio Broadcasting Issues". The speakers will be Peter Doyle, Chief of the FCC's Audio Division, and other FCC personnel. The FCBA states that this is an FCBA event. Location: Wiley Rein, 1776 K St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 PM for legislative business. See, House Majority Leader calendar for week of February 7.

10:00 AM. The House Ways and Means Committee (HWMC) will hold a hearing titled "President Obama’s Trade Policy Agenda". This hearing will cover, among other topics, trade with the People's Republic of China, the U.S. Korea free trade agreement, Doha round negotiations, and Russian accession to the World Trade Organization (WTO). See, notice. Location: Room 1100, Longworth Building.

3:30 - 5:30 PM. The New America Foundation (NAF) will host an event to release and discuss a paper titled "Full Spectrum Community Media: Expanding Public Access to Communications Infrastructure". The speakers will be Sascha Meinrath (NAF), Steven Waldman (FCC), Joshua Breitbart (NAF), Sylvia Strobel
(Alliance for Community Media), Brandy Doyle (Prometheus Radio Project), Laurie Cirivello (Grand Rapids Community Media Center), and Tom Glaisyer (NAF). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 PM for legislative business. See, House Majority Leader calendar for week of February 7.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Immigration Policy and Enforcement will hold a hearing titled "E-Verify- Preserving Jobs for American Workers". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and Technology will hold a hearing titled "ARRA Broadband Spending". See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, January 20, 2011, Vol. 76, No. 13, at Page 3612. Location: DOC, Hoover Building, Room 6087B, 14th Street between Constitution & Pennsylvania Avenues, NW.

12:15 PM. The Federal Communications Bar Association (FCBA) Wireless Telecommunications Committee will host a brown bag lunch titled "Disabilities Issues Affecting the Wireless Industry". Location: Wiley Rein, 1776 K St., NW.

6:00 PM. Deadline to submit applications to the Federal Communications Commission (FCC) to participate in Auction 91. See, notice in the Federal Register, January 21, 2011, Vol. 76, No. 14, at Pages 3892-3906.

The House will meet at 9:00 AM for legislative business. See, House Majority Leader calendar for week of February 7.

10:00 AM. The House Ways and Means Committee's (HWMC) Subcommittee on Social Security will hold a hearing titled "Managing Costs and Mitigating Delays in the Building of Social Security’s New National Computer Center". See, notice. Location: Room 1100, Longworth Building.

10:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "Crossing the Finish Line on Patent Reform -- What Can and Should be Done". See, notice. Location: Room 2141, Rayburn Building.

The House will meet. Votes will be postponed until 6:30 PM.

12:00 NOON. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be FCC Commissioner Michael Copps. Prices vary. The deadline for registrations and cancellations is 12:00 NOON on February 11. See, registration form. Location: Capitol Hilton, 1001 16th St.,  NW.

The Federal Communications Commission (FCC) will commence Auction 90, regarding certain VHF construction permits. See, FCC September 8, 2010, Public Notice (DA 10-1351 in AU Docket No. 10-147) and notice in the Federal Register, September 23, 2010, Vol. 75, No. 184, at Pages 57947-57952. See also, November 1, 2010, Public Notice (DA 10-2008 in in AU Docket No. 10-147). And see, notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Page 74719-74731.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for participation in its 2011 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, computer science, mathematics, and nanotechnology. See, notice in the Federal Register, January 3, 2011, Vol. 76, No. 1, at Pages 93-98.

5:00 PM. Deadline for the public to submit comments, and requests to testify at the March 2 hearing, to the Office of the U.S. Trade Representative (OUSTR) to assist it in preparing its 2011 Special 301 report, regarding countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on IP protection. See, notice in the Federal Register, December 30, 2010, Vol. 75, No. 250, at Pages 82424-82426. See also, story titled "OUSTR Seeks Input for Special 301 Report" in TLJ Daily E-Mail Alert No. 2,191, January 3, 2011.

2/3. The Senate Judiciary Committee (SJC) approved by voice vote the following nominations:

• James Graves (USCA/5thCir)
• Edward Davila (USDC/NDCal)
• Amy Jackson (USDC/DC)
• James Boasberg (USDC/DC),
• Max Cogburn (USDC/WDNC)
• Marco Hernandez (USDC/DOre)
• Steve Jones (USDC/NDGa)
• Amy Totenberg (USDC/NDGa)
• Paul Holmes (USDC/WDArk)
• Anthony Battaglia (USDC/SDCal)
• Diana Saldana (USDC/SDTex)

2/3. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration the following nominations:

• Susan Carney (USCA/2ndCir)
• James Shadid (USDC/CDIll)
• Sue Myerscough (USDC/CDIll)
• Michael Simon (USDC/DOre)

1/26. President Obama renominated several persons for trade related positions:

• Eric Hirschhorn (Under Secretary of Commerce for Export Administration)
• David Lee Carden (US Representative to ASEAN)
• Michael Punke (Deputy USTR)
• Islam Siddiqui (Chief Agricultural Negotiator, Office of the USTR)

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