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Thursday, August 16, 2012, Alert No. 2,430.
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SEC Alleges Oracle Subsidiary in India Violated FCPA

8/16. The Securities and Exchange Commission (SEC) filed a civil complaint [PDF] in the U.S. District Court (NDCal) against Oracle alleging violation of the Foreign Corrupt Practices Act (FCPA).

The complaint does not allege that Oracle paid any bribes to foreign officials. It merely alleges that one of Oracle's subsidiaries, Oracle India Private Limited, created "the potential for bribery or embezzlement".

The SEC asserts that Oracle "failed to implement or maintain a system of effective internal accounting controls to prevent improper side funds in violation of the FCPA". Hence, both counts allege violation of the books and records and internal controls provisions of the FCPA.

The SEC also announced in a release that Oracle, without admitting wrongdoing, consent to entry of judgment against it, and payment of a fine of $2 Million.

This case is SEC v. Oracle Corporation, U.S. District Court for the Northern District of California, Santa Clara Division, D.C. No. 12-4310-CRB.

Utah Auditor Describes Failings of Government Broadband Network

8/1. The state of Utah's Office of the Legislative Auditor General released a report [88 pages in PDF] titled "A Performance Audit of the Utah Telecommunication Open Infrastructure Agency". It criticizes Utah's government owned and run broadband internet access service (BIAS) named Utah Telecommunication Open Infrastructure Agency, or UTOPIA.

This agency competes with commercial BIAS providers. However, it is sold only on a wholesale basis.

This report states that this agency "planned to build a broadband network in three years and to achieve a positive cash flow in five years", but failed to do so, and is now covering operating costs with debt. It states that Utah issued $185 Million in bonds to finance the building of the network, but that "Most of the bond proceeds have been invested in poorly utilized and partially completed sections of network".

Moreover, this state run business has "poor construction planning", "mismanagement", and a "general lack of subscribers".

USPTO Announces First Inventor to File NPRM and Roundtable

8/16. The U.S. Patent and Trademark Office (USPTO) published notices in the Federal Register (FR) on August 16 and July 26 that announce that the USPTO will hold a public roundtable, and that announce proposed changes to its rules of practice and proposed changes to its examination guidelines, regarding implementation of the first inventor to file provisions of the Leahy Smith America Invents Act.

The roundtable will be held from 1:30 to 4:30 PM on September 6 in the USPTO's Madison Building Auditorium. The deadline for written comments is October 5.

The "Leahy-Smith America Invents Act", or AIA, was HR 1249 [LOC | WW] in the 112th Congress. President Obama signed it into law on September 16, 2011. It is now Public Law No. 112-29.

One of its key changes is switching the US from a first to invent system to a first inventor to file system.

On July 26 the USPTO published a notice in FR that announces, describes, and recites proposed changes to its rules of practice in patent cases to implement the changes to the conditions of patentability, to implement the first inventor to file system, and to eliminate the provisions pertaining to statutory invention registrations. See, FR, Vol. 77, No. 144, July 26, 2012, at Pages 43742-43759.

Also on July 26, the USPTO published a second notice in FR that announces, describes, and recites proposed changes to its examination guidelines to implement the first inventor to file system provisions of the AIA. See, FR, Vol. 77, No. 144, July 26, 2012, at Pages 43759-43773.

On August 16 the USPTO published a notice in the FR of its public roundtable. See, FR, Vol. 77, No. 159, August 16, 2012, at Pages 49427-49428.

David Kappos, head of the USPTO, stated in a release that "The first-inventor-to-file provision of the America Invents Act, one of its hallmarks, brings greater transparency, objectivity, predictability, and simplicity in patentability determinations ... At the same time, the provision brings the United States closer in harmonizing our patent law with those in other countries around the globe."

Section 3 of the AIA, which includes the first inventor to file provisions, takes effect on March 16, 2013.

PK and FP Allege AT&T Wireless BIAS Offerings Violate FCC Net Neutrality Rules

8/17. The Public Knowledge (PK) and Free Press (FP), recurrent critics of communications and broadband companies, complained in releases about an AT&T announcement regarding use of Apple's bandwidth intensive FaceTime software on devices connected to AT&T's wireless network.

FaceTime is a software application that runs on recent versions of the Apple iPhone, and certain other recent Apple devices, but not non-Apple devices. Currently, it is available via Wi-Fi connection. However, Apple has announced that it will be available on new devices via mobile networks. FaceTime enables device to device simultaneous voice and video calling over internet protocol.

AT&T will allow its wireless customers to use FaceTime if they subscribe to one of its Mobile Share data plans. This announcement does not affect AT&T's wireline broadband customers. Nor does it not affect AT&T wireless customers when they use a Wi-Fi connection. See also, AT&T's "Mobile Share" data plans web page.

The PK's John Bergmayer asserted in a release that AT&T has violated the Federal Communications Commission's (FCC) rules that regulate the business practices of broadband internet access service (BIAS) providers.

Bergmayer wrote that "By blocking FaceTime for many of its customers, AT&T is violating the FCC's Open Internet rules. These rules state that mobile providers shall not 'block applications that compete with the provider's voice or video telephony services.' Although carriers are permitted to engage in 'reasonable network management,' there is no technical reason why one data plan should be able to access FaceTime, and another not. 'Over-the-top' communications services like FaceTime are a threat to carriers' revenue, but they should respond by competing with these services and not by engaging in discriminatory behavior."

The FP's Matt Wood stated in a release that "It's not supposed to be this way. The Net Neutrality protections in place today for wireless are too weak, but at least prevent carriers from blocking these types of apps. The FCC's rules prohibit such blatantly anti-competitive conduct by wireless companies."

The FCC's rules are contained in the Report and Order (R&O) [194 pages in PDF] adopted on December 21, 2010, and released on December 23, 2010. This R&O is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

There is a substantial likelihood that the U.S. Court of Appeals (DCCir) will vacate these rules.

These rules treat wireless and fixed broadband differently.

First, the ban on unreasonable discrimination in transmitting lawful network traffic applies only to fixed.

Second, the FCC's rules impose more stringent requirements regarding application blocking on fixed than on wireless service providers.

The rule for fixed is this. A fixed BIAS provider "shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management."

The rule for wireless is this. A wireless BIAS provider "shall not block consumers from accessing lawful websites, subject to reasonable network management" or "block applications that compete with the provider's voice or video telephony services, subject to reasonable network management".

Neither the PK nor FP identified an AT&T application or service offering that competes with FaceTime.

The FCC's rules also provide that "Any person may file a formal complaint alleging a violation of the rules". Neither the PK nor FP filed a complaint with the FCC.

In This Issue
This issue contains the following items:
  SEC Alleges Oracle Subsidiary in India Violated FCPA
  Utah Auditor Describes Failings of Government Broadband Network
  USPTO Announces First Inventor to File NPRM and Roundtable
  PK and FP Allege AT&T Wireless BIAS Offerings Violate FCC Net Neutrality Rules
Washington Tech Calendar
New items are highlighted in red.
Monday, August 20

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. Samsung Electronics, App. Ct. No. 2012-1507, an appeal from the U.S. District Court (NDCal) in the patent infringement case involving smart phones and tablet computers. At issue in this oral argument is whether the District Court should have enjoined sale of Samsung's Galaxy Nexus smart phone. Panel I. Location: Courtroom 201.

Deadline to submit to the Copyright Royalty Board (CRB) Petitions to Participate in, and filing fees for, the CRB's proceeding to determine the distribution of the digital audio recording technology royalty fees in the 2005, 2006, 2007 and 2008 Musical Works Funds. See, notice in the Federal Register, Vol. 77, No. 140, July 20, 2012, at Pages 42764-42765.

Deadline to submit comments to the Department of Health and Human Services' (DHHS) Agency for Healthcare Research and Quality (AHRQ) in response to its Request for Information (RFI) regarding current strategies and challenges regarding quality measurement enabled by health information technology (IT). See, notice in the Federal Register, Vol. 77, No. 140, July 20, 2012, Pages 42738-42740.

Tuesday, August 21

The Senate will meet at 10:00 AM in pro forma session.

10:00 AM - 12:00 PM. The Center for American Progress (CAP) will host a panel discussion titled "Comparing U.S., Chinese, and Indian Investments in the Next-Generation Workforce". The speakers will be Eric Hanushek (Stanford University), Governor Jack Markell (D-DE), Bob Carpenter (Chesapeake Beach Consulting), Marilyn Reznick (AT&T), and Ann O'Leary (CAP). See, notice. Location: CAP, 10th Floor, 1333 H St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and telecast panel discussion titled "Mayo v. Prometheus: The Supreme Court's New Methodology for Analyzing Patent Eligibility". The speakers will be Robert Armitage (Eli Lilly), Thomas Krauss (USPTO), and Denise DeFranco (Finnegan Henderson). Prices vary. CLE credits. See, notice.

Wednesday, August 22

9:30 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold one in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. Location: Auditorium, DOC, Hoover Building, 14th Street and Constitution Ave., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

Thursday, August 23

11:00 AM - 12:30 PM. The American Bar Association (ABA) will host a webcast and telecast presentation titled "Protecting Your Intellectual Property: Best Practices for China in 2012". The speaker will be James Zimmerman (Sheppard Mullin). Prices vary. CLE credits. See, notice.

2:00 - 4:00 PM. The Small Business Administration (SBA) will host a webcast program on the Small Business Innovation Research (SBIR) and Small Business Technology Transfer Program (STTR) reauthorization act. See, notice in the Federal Register, Vol. 77, No. 151, Monday, August 6, 2012, at Page 46909.

6:00 - 9:15 PM. The DC Bar Association will host a presentation titled "Federal Lobbying 2012: A Guide to Regulation and Compliance". The speaker will be Andrew Siff (Siff & Associates). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Day one of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA Patent Prosecution Practical Patent Prosecution Training for New Lawyers". See, notice. For more information, contact aipla at aipla dot org or 703-415-0780. Location: Alexandria, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's WCB) Public Notice [23 pages in PDF] regarding expanding FCC subsidies for rural health care providers to include broadband. The FCC released this item on July 19, 2012. It is DA 12-1166 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 77, No. 144, Thursday, July 26, 2012, at Pages 43773-43780.

Friday, August 24

The Senate will meet at 10:00 AM in pro forma session.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "Building Momentum: Advanced LinkedIn for Lawyers". The speaker will be Tasha Coleman (Upward Action). Free. No CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and telecast panel discussion titled "The America Invents Act: The Boundaries of Prior Art". The speakers will be Steve Chang (Banner & Witcoff), Susanne Jones (O'Brien Jones), and Janet Hendrickson (Senniger Powers). Prices vary. CLE credits. See, notice.

Day two of a two day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA Patent Prosecution Practical Patent Prosecution Training for New Lawyers". See, notice. For more information, contact aipla at aipla dot org or call 703-415-0780. Location: Alexandria, VA.

Monday, August 27

Day one of four of the Republican National Convention.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the complaints filed with the World Trade Organization (WTO) by the US, Japan and EU against the People's Republic of China (PRC) regarding its rare earth materials export policies. See, notice in the Federal Register, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44706-44707.

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