5/22. The Federal Trade Commission (FTC) and the Department of Justice's (DOJ) Antitrust Division filed an amicus curiae brief with the U.S. Court of Appeals (FedCir) in Ritz Camera & Image v. SanDisk, in support of Ritz.

SanDisk made flash memory products, which Ritz and others purchased. Ritz and the others filed a complaint in the U.S. District Court (NDCal) against SanDisk alleging monopolization in violation of Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2.

The plaintiffs' complaint alleges fraud on the U.S. Patent and Trademark Office (USPTO) by intentionally failing to disclose invalidating prior art and by making affirmative misrepresentations to the USPTO, subsequent enforcement of fraudulently obtained patents, and harm to competition by the charging of monopoly prices.

At issue is the the circumstances in which Section 4 of the Clayton Act, which is codified at 15 U.S.C. § 15, authorizes direct purchasers to recover overcharge damages resulting from a monopoly obtained and maintained through enforcement of a fraudulently procured patent.

The District Court held that direct purchasers do have antitrust standing. SanDisk then brought the present interlocutory appeal.

The FTC and DOJ argued that "For over a century, courts have held that direct purchasers have standing to recover overcharges paid to unlawful monopolists. There is no sound reason to depart from that well-settled principle when the anticompetitive conduct creating or maintaining the monopoly is the enforcement of a patent obtained through intentional fraud on the PTO."

The FTC and DOJ noted that the Supreme Court held in its 1965 opinion in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., which is reported at 382 U.S. 172, that those injured by monopolistic action taken under fraudulently procured patents can sue for damages under the antitrust laws.

The FTC/DOJ wrote that SanDisk "contends that, in addition to meeting the standards for antitrust standing, a plaintiff asserting a Walker Process claim also must satisfy the requirements imposed on a plaintiff seeking a declaratory judgment of patent invalidity. ... But neither Walker Process nor any court of appeals decision justifies such a rule".

The FTC/DOJ also wrote that "A plaintiff seeking a declaratory judgment of patent invalidity ordinarily must demonstrate that it has been threatened with an infringement suit in order to meet the constitutional requirement of a ``case or controversy.´´ But a properly alleged Walker Process claim for damages under the antitrust laws creates a justiciable controversy whether or not there is a threat of patent enforcement against the plaintiff."

The FTC/DOJ reasoned that "Ritz has alleged precisely the type of injury the antitrust laws were intended to redress. As a direct purchaser, Ritz’s injury is entirely distinct from that of an excluded competitor, and its damages -- the overcharges it paid for the monopolized product -- do not overlap the lost profits that an excluded competitor might seek."

The FTC/DOJ also urged that the Court of Appeals "not adopt a rule making direct purchaser standing turn on a separate proceeding over which the direct purchaser has no control. Such a rule could encourage holders of fraudulently procured patents to settle Walker Process claims made by excluded competitors, allowing the excluded competitors to share in any monopoly profits and the defendant to deny direct purchasers their right to recover damages under the Clayton Act."

See also, FTC release.

This case is Ritz Camera & Image LLC. v. Sandisk Corporation, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 12-1183, an appeal from the U.S. District Court for the Northern District of California, D.C. No. 10-CV-2787.

5/17. The Copyright Office (CO) published a notice in the Federal Register (FR) in which it announces, describes, recites, and sets the comment deadlines for, its proposed rules changes regarding the definition of a claimant for purposes of copyright registration.

The CO proposes to eliminate the footnote to the definition of a claimant codified at 37 CFR § 202.3(a)(3)(ii), which provides that a claimant includes individuals or entities that have obtained the contractual right to claim legal title to copyright in an application for copyright registration.

The CO notice states that "This amendment would clarify that the copyright claimant must be either the author of the work, or a person or organization that has obtained ownership of all of the exclusive rights initially belonging to the author. The Copyright Office believes that the footnote creates considerable legal uncertainty while offering no clear benefits to the registration system. Removing it will foster the use of other available registration options that create a more meaningful public record."

Initial comments are due July 16, 2012. Reply comments are due August 15, 2012. See, FR, Vol. 77, No. 96, Thursday, May 17, 2012, at Pages 29257-29259.

5/21. Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee (SJC), and Sen. Jeff Sessions (R-AL) sent at letter, with interrogatories, to Chief Judge Alex Kozinski of the U.S. Court of Appeals (9thCir) regarding the 9th Circuit's practice of holding conventions, at taxpayer expense, in posh resort hotels in Hawaii, rather than via Skype.

The 9th Circuit has a conference scheduled for August on the island of Maui. Sen. Grassley (at right) stated in a release that "Technology is so advanced that people are earning college degrees online and soldiers serving halfway across the world use Skype with their families at home".

He added that "a judicial circuit court should be capable of using technology to share information without requiring a trip to an island paradise. It's especially tone-deaf to plan a pricey conference after the GSA debacle. The taxpayers can't sustain this kind of spending, and they shouldn't have to. The court should re-examine whether this is the best use of tax dollars."

5/25. The Federal Communications Commission (FCC) announced in a release that Austin Schlick (at left) "will step down as General Counsel, effective mid-June" and that Sean Lev, who is currently Deputy General Counsel and Special Advisor to the Chairman, will become General Counsel. Lev has held positions at the FCC and Department of Energy (DOE) during the Obama administration. Previously, he worked at the Washington DC law firm of Kellogg Huber. Schlick also previously worked at Kellogg Huber.

5/25. The Federal Communications Commission (FCC) announced in a release that Rick Kaplan "will step down" in "mid-June" as Chief of the FCC's Wireless Telecommunications Bureau (WTB), and that Ruth Milkman (at right), who was Chief of the WTB prior to Kaplan, and is currently Special Counsel to the Chairman for Innovation in Government, will return to the position of Chief of the WTB.

5/25. The Copyright Office (CO) published a notice in the Federal Register (FR) in which it announces, describes, recites, and sets the comment deadline for, its proposed rules changes regarding the filing of notices of intention to obtain a compulsory license, pursuant to 17 U.S.C. § 115. The CO proposes to provide an option for electronically filing the notice. Comments are due by 5:00 PM on July 9, 2012. See, FR, Vol. 77, No. 102, Friday, May 25, 2012, at Pages 31237-31240.

5/23. James Cole (at right), the Deputy Attorney General, gave a speech at an awards ceremony in Washington DC. He stated that the Department of Justice's (DOJ) Internet Crimes Against Children Task Force Program "is going strong and is continuing to realize remarkable success in solving technology-facilitated crimes against children. What began as a small, loose-knit program years ago has grown into highly-trained, coordinated and effective network of 61 task forces." He also discussed in some detail one case involving online child pornography.

5/17. Rep. Blaine Luetkemeyer (R-MO), Rep. Lynn Westmoreland (R-GA) and Rep. Scott Garrett (R-NJ) introduced HR 5817 [LOC | WW], a bill to amend the Gramm Leach Bliley Act to provide an exception to the annual privacy notice requirement. It was referred to the House Financial Services Committee (HFSC).

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The House will meet at 10:00 AM for morning hour, and at 12:00 PM for legislative business. It will consider HR 5743 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2013".

The Senate will not meet.

8:30 AM - 5:30 PM. Day two of a three day meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). Free. Open to the public. See, notice in the Federal Register, Vol. 77, No. 84, Tuesday, May 1, 2012, at Pages 25686-25687. Location: DOC/NIST, Heritage Room, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:00 AM. The Copyright Office (CO) will hold a hearing regarding its triennial review of exemptions to the anticircumvention provisions of 17 U.S.C. § 1201. The deadline to submit requests to testify is 5:00 PM EDT on April 2, 2012. See, story titled "Copyright Office Schedules Hearings on Proposed Anticircumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012. Location: CO, Copyright Hearing Room, LM-408, James Madison Building, Library of Congress, 101 Independence Ave., SE.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing on HR 6304 [LOC | WW], the "FISA Amendments Act of 2008", enacted into law by the 110th Congress. It is Public Law No. 110-261. It is also titled the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". See, notice. See also, story titled "House and Senate Leaders Release Draft FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008, and stories titled "House Approves FISA Reform Bill" and "Attorney General and DNI Praise FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,783, June 19, 2008. Location: Room 2141, Rayburn Building.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Examining the Proposed National Network for Manufacturing Innovation". The witnesses will include Patrick Gallagher, head of the National Institute of Standards and Technology (NIST). See, notice. Location: Room 2318, Rayburn Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "International Proposals to Regulate the Internet". See, notice. Location:  Room 2322, Rayburn Building.

2:00 PM. Deadline to submit proposals to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) in response to its reissued Request for Proposal (RFP) SA1301-12-RP-0043 for a new Internet Assigned Numbers Authority (IANA) functions contract. This is for the contract term of October 1, 2012 through September 30, 2015. See, summary, and RFP and Form 33.

The House will meet at 9:00 AM.

The Senate will not meet.

8:30 AM - 1:00 PM. Day three of a three day meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). Free. Open to the public. See, notice in the Federal Register, Vol. 77, No. 84, Tuesday, May 1, 2012, at Pages 25686-25687. Location: DOC/NIST, Heritage Room, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:00 AM. The Copyright Office (CO) will hold a hearing regarding its triennial review of exemptions to the anticircumvention provisions of 17 U.S.C. § 1201. The deadline to submit requests to testify is 5:00 PM EDT on April 2, 2012. See, story titled "Copyright Office Schedules Hearings on Proposed Anticircumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012. Location: CO, Copyright Hearing Room, LM-408, James Madison Building, Library of Congress, 101 Independence Ave., SE.

9:30 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Cyber Threats to Capital Markets and Corporate Accounts". See, notice. Location: Room 2128, Rayburn Building.

9:30 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Class Action Seven Years After the Class Action Fairness Act". The witnesses will be Martin Redish (Northwestern University law school), Thomas Sobol (Hagens Berman), and John Beisner (Skadden Arps). See, notice. The CAFA was S 5 in the 109th Congress. It is now Public Law No. 109-2. It is codified at 28 U.S.C. § 1332(d)(2). Location: Room 2141, Rayburn Building.

1:00 - 2:30 PM. American Bar Association's (ABA) Section of Intellectual Property Law will host a webcast and teleconferenced panel discussion titled "Understanding the America Invents Act: A Sweeping Change of U.S. Patent Prosecution Practice". The speakers will be Robert Bahr (USPTO), Thomas Irving (Finnegan Henderson), Teresa Rea (USPTO), MaCharri Jones (Eli Lilly), Donna Meuth (Eisai Inc.). The price ranges from $75 to $195. CLE credits. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding interoperability in the 700 MHz bands. The FCC adopted and released this NPRM on March 21, 2012. It is FCC 12-31 in WT Docket No. 12-69. See, notice in the Federal Register, Vol. 77, No. 63, Monday, April 2, 2012, at Pages 19575-19589. See also, stories titled "FCC Adopts NPRM on Interoperability in 700 MHz Bands" and "Reaction to FCC NPRM on Interoperability in 700 MHz Bands" in TLJ Daily E-Mail Alert No. 2,353, March 22, 2012.

10th anniversary of the Supreme Court's opinion in Holmes v. Vornado, 535 U.S. 826 (2003). See, story titled "Supreme Court Rules on Appellate Jurisdiction of Federal Circuit" in TLJ Daily E-Mail Alert No. 443, June 4, 2002. HR 1249 [LOC | WW], the "America Invents Act", Public Law No. 112-29, at Section 19(b), undid the holding in this case.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI) [84 pages in PDF] regarding use of MSS Spectrum for Terrestrial Broadband. The FCC adopted and released this item on March 21, 2012. It is FCC 12-32 in WT Docket No. 12-70, ET Docket No. 10-142, and WT Docket No. 04-356. See, notice in the Federal Register, Vol. 77, No. 74, Tuesday, April 17, 2012, at Pages 22720-22748. See also, story titled "FCC Adopts NPRM Regarding Use of MSS Spectrum for Terrestrial Broadband" in TLJ Daily E-Mail Alert No. 2,353, March 22, 2012.

The Senate will meet at 2:00 PM. It will consider the nomination of Timothy Hillman to be a Judge of the U.S. District Court (DMass).

9:00 AM. The Copyright Office (CO) will continue its hearing regarding its triennial review of exemptions to the anticircumvention provisions of 17 U.S.C. § 1201. The deadline to submit requests to testify is 5:00 PM EDT on April 2, 2012. See, story titled "Copyright Office Schedules Hearings on Proposed Anticircumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012. Location: CO, Copyright Hearing Room, LM-408, James Madison Building, Library of Congress, 101 Independence Ave., SE.

12:00 NOON - 1:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "February Antitrust Update for In-House Counsel". The speakers will be from the law firm of Latham & Watkins. No CLE credits. Register by contacting dorothy at dorothyraymond dot com. See, notice.

9:00 AM. The Copyright Office (CO) will continue its hearing regarding its triennial review of exemptions to the anticircumvention provisions of 17 U.S.C. § 1201. The deadline to submit requests to testify is 5:00 PM EDT on April 2, 2012. See, story titled "Copyright Office Schedules Hearings on Proposed Anticircumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012. Location: CO, Copyright Hearing Room, LM-408, James Madison Building, Library of Congress, 101 Independence Ave., SE.

9:30 - 11:00 AM. The DC Bar Association will host a presentation titled "What You Need to Know About the New Patent Laws under the AIA". The price to attend is $15. Reporters are barred from attending most DC Bar events. No CLE credits. See, notice. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:00 PM. American Bar Association's (ABA) Section of Antitrust Law will host a webcast and teleconferenced panel discussion titled "Privacy and Information Security Update". The speakers will be Aryeh Friedman (Dun & Bradstreet), Lisa Sotto (Hunton & Williams) and Aaron Simpson (Hunton & Williams). For more information, and to register, contact Jeanne Welch at jawelch at vorys dot com. See, notice.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing titled "Intelligence Matters". See, notice. Location: Room 219, Hart Building.

Day one of a three day conference hosted by the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) titled "Cloud Computing Forum & Workshop V". See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26509. Location: DOC, Hoover Building, Room __, 401 Constitution Ave., NW.

8:00 AM - 2:30 PM. Day one of a two day event titled "Health Privacy Summit". See, notice. Location: Georgetown Law Center, 600 New Jersey Ave., NW.

Day two of a three day conference hosted by the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) titled "Cloud Computing Forum & Workshop V". See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26509. Location: DOC, Hoover Building, Room __, 401 Constitution Ave., NW.

9:00 AM. The Copyright Office (CO) will conclude its hearing regarding its triennial review of exemptions to the anticircumvention provisions of 17 U.S.C. § 1201. The deadline to submit requests to testify is 5:00 PM EDT on April 2, 2012. See, story titled "Copyright Office Schedules Hearings on Proposed Anticircumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012. Location: CO, Copyright Hearing Room, LM-408, James Madison Building, Library of Congress, 101 Independence Ave., SE.

9:00 AM - 5:00 PM. Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Department of Health and Human Services (DHHS) titled "Safeguarding Health Information: Building Assurance through HIPAA Security". See, notice. The price to attend is $395. Location: Ronald Reagan Building and International Trade Center.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "The Future of Audio". See, notice. Location: Room 2322, Rayburn Building.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the book [Amazon] titled "Time to Start Thinking". The speakers will be the author, Ed Luce, and Robert Atkinson (head of the ITIF). See, notice. Free. Open to the public. Location: ITIF/ITIC, Suite 610, 1101 K St.,  NW.

1:30 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Asian and the Pacific will hold a hearing titled "What's Next for the U.S.-Korea Alliance?". See, notice. Location: Room 2172, Rayburn Building.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Committee will host a program titled "The Road Ahead for Spectrum". Registrations and cancellations are due by 12:00 NOON on June 5. The price to attend ranges from $25 to $125. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its its draft NIST IR-7848 [38 pages in PDF] titled "Specification for the Asset Summary Reporting Format 1.0".

8:00 AM - 2:30 PM. Day two of a two day event titled "Health Privacy Summit". See, notice. Location: Georgetown Law Center, 600 New Jersey Ave., NW.

Day three of a three day conference hosted by the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) titled "Cloud Computing Forum & Workshop V". See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26509. Location: DOC, Hoover Building, Room __, 401 Constitution Ave., NW.

9:00 AM - 4:30 PM. Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Department of Health and Human Services (DHHS) titled "Safeguarding Health Information: Building Assurance through HIPAA Security". See, notice. The price to attend is $395. Location: Ronald Reagan Building and International Trade Center.

9:30 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Oversight of the United States Department of Justice". See, notice. Location: Room 2141, Rayburn Building.

9:30 AM - 2:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. Location: FCC, 445 12th St., SW.

11:00 AM - 12:30 PM. American Bar Association's (ABA) Section of Intellectual Property Law will host a webcast and teleconferenced panel discussion titled "International Patent Litigation: A Compare and Contrast of Patent Litigation in Different Countries". The speakers will be Koen Bijvank (Vereenigde), David Hill (Finnegan Henderson), Steve Schad (ESCO Corporation), and Stephanie Roberts (Banner & Witcoff). The price ranges from $75 to $195. See, notice.

12:00 NOON - 1:30 PM. American Bar Association's (ABA) Section of International Law will host a webcast  and teleconferenced panel discussion titled "HIPAA and HITECH Act Fundamentals: What You Need to Know Now About the Privacy and Security Rules". The speakers will be Eddie Williams (Holland & Knight), Elaine Zacharakis (Zacharakis Loumbas Law), and Clay Countryman (Breazeale Sachse & Wilson). The price ranges from $95 to $195. CLE credits. See, notice.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing titled "Intelligence Matters". See, notice. Location: Room 219, Hart Building.

Day one of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "Legal Secretaries & Administrators Conference". For more information, contact aipla at aipla dot org or call 703-415-0780. Location: USPTO, Alexandria, VA.