12/19. A divided Federal Trade Commission (FTC) released a notice, to be published in the Federal Register, that announces, describes, recites, and sets the effective date of, its new rules related to the COPPA and the regulation of privacy related online business practices.

This notice states that these new rules are "consistent with the requirements of the Children's Online Privacy Protection Act", which the Congress hastily enacted back in 1998. However, whether these new rules are indeed consistent with the COPPA will likely be subjected to judicial review.

FTC Chairman Jonathan Leibowitz stated that "the Internet of 2012 is vastly different from the Internet of more than a decade ago, when we first issued the COPPA Rule. Since then, we have seen the rise of smartphones, tablets, social networks, and more than a million apps",  which "exacerbate the privacy risks to children".

Leibowitz (at right) said that the new rule expands the definition of personal information to include geolocation information, photographs, and videos. He said that the new rule covers "persistent identifiers like IP addresses and mobile device IDs, which could be used to build massive profiles of children by behavioral marketers."

He also said the new rules closes "a loophole that allowed apps and websites to permit third parties to collect personal information from our children -- through plug-ins -- in ways that they could not have done themselves without parental consent. And we extend coverage in some of those cases to the third parties doing the collection too". See, statement.

In contrast, FTC Commissioner Maureen Ohlhausen dissented, arguing that the FTC has exceeded its statutory authority.

And, Daniel Castro of the Information Technology and Innovation Foundation (ITIF) stated in a release that "Due in part to FTC rule making, the Internet has failed to live up to its potential in bringing forth a new era of compelling and educational child-friendly websites. This recent announcement is just another example of how federal child privacy laws harm children more than help them."

The Statute. The COPPA, which is codified at 15 U.S.C. §§ 6501-6506, bans operators of web sites and online services that are directed to children from collecting information from children under thirteen without parental consent.

The COPPA was S 2326 in the 105th Congress. S 2326 was enacted into law as part of a large omnibus appropriations bill in October of 1998. See, TLJ story titled "Internet and Tech Bills Become Law", October 22, 1998. See also, TLJ web page titled "Children's Online Privacy Protection Act" (1998).

The statute, at 15 U.S.C. § 6502, states that "It is unlawful for an operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting personal information from a child, to collect personal information from a child in a manner that violates the regulations prescribed under subsection (b) of this section." (Emphasis added.)

The statute, at 15 U.S.C. § 6501, defines "operator" as "any person who operates a website located on the Internet or an online service and who collects or maintains personal information from or about the users of or visitors to such website or online service, or on whose behalf such information is collected or maintained, where such website or online service is operated for commercial purposes, including any person offering products or services for sale through that website or online service, involving commerce". (Emphasis added.)

This definitional section also provides that "website or online service directed to children" means "(i) a commercial website or online service that is targeted to children; or (ii) that portion of a commercial website or online service that is targeted to children."

FTC Rules. The FTC adopted rules in 2000, pursuant to subsection (b).

In September 2011, the FTC issued a notice of proposed rulemaking. See, Federal Register, Vol. 76, No. 187, Tuesday, September 27, 2011, at Pages 59803-59833. See also, story titled "FTC Proposes Changes to COPPA Rule" in TLJ Daily E-Mail Alert No. 2,302, September 21, 2011.

The FTC released another notice [43 pages in PDF] on August 1, 2012. See, story titled "FTC Releases COPPA Further NPRM" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

The FTC notice states that "The final amended Rule includes modifications to the definitions of operator, personal information, and website or online service directed to children. The amended Rule also updates the requirements set forth in the notice, parental consent, confidentiality and security, and safe harbor provisions, and adds a new provision addressing data retention and deletion."

The FTC asserted in a release that the new rules will "close a loophole that allowed kid-directed apps and websites to permit third parties to collect personal information from children through plug-ins without parental notice and consent".

The FTC release also states that the new rules will "extend coverage in some of those cases so that the third parties doing the additional collection also have to comply with COPPA" and "extend the COPPA Rule to cover persistent identifiers that can recognize users over time and across different websites or online services, such as IP addresses and mobile device IDs".

Ohlhausen Dissent. FTC Commissioner Maureen Ohlhausen wrote a dissent. She wrote that "a core provision of the amendments exceeds the scope of the authority granted us by Congress in COPPA, the statute that underlies and authorizes the Rule".

Ohlhausen (at right) explained that "The proposed amendments construe the term ``on whose behalf such information is collected and maintained´´ to reach child-directed websites or services that merely derive from a third-party plug-in some kind of benefit, which may well be unrelated to the collection and use of children's information (e.g., content, functionality, or advertising revenue)." (Parentheses in original.)

"I find that this proviso -- which would extend COPPA obligations to entities that do not collect personal information from children or have access to or control of such information collected by a third-party -- does not comport with the plain meaning of the statutory definition of an operator in COPPA, which covers only entities ``on whose behalf such information is collected and maintained.´´" (Footnote omitted.)

"In other words, I do not believe that the fact that a child-directed site or online service receives any kind of benefit from using a plug-in is equivalent to the collection of personal information by the third-party plug-in on behalf of the child-directed site or online service."

These new rules are likely to be challenged in court. The court will likely apply Chevron deference. Ohlhausen, anticipating this, quoted from Chevron: the FTC "must give effect to the unambiguously expressed intent of Congress".

Congressional Reaction. Rep. Joe Barton (R-TX) stated in a release that "The final rules proposed by the FTC are needed and necessary."

Rep. Henry Waxman also praised the new rules in a release. He said that "Congress was well aware that technology can change quickly and gave the FTC enough flexibility and discretion to make sure the law could evolve with technology. 

Sen. John Rockefeller (D-WV) praised the rules. He said in a release that "The new COPPA Rule captures this new online reality."

More Reaction. Morgan Reed of the Association for Competitive Technology (ACT) stated in a release "While we appreciate the efforts of Chairman Leibowitz, we are particularly concerned with his expectation that the industry will simply find a solution to the new rules. It is akin to jumping off a cliff with the plan to build the parachute on the way down."

Reed added that "In the mobile space, companies like Apple and Microsoft are giving parents the ability to control directly app downloads, app use, and data collection and sharing regardless of decisions made by the app developer.  These tools make the need for such drastic changes to the COPPA rules completely unnecessary."

The Center for Democracy and Technology (CDT) stated in a release that "we are concerned that the updated definition of when a website is ``directed to children´´ could expand COPPA's reach to general audience sites and confuse website owners as to whether these new rules apply to them."

The CCT elaborated that "This uncertainty will likely prompt more sites to take advantage of the Commission's new age-screening safe harbor, which could lead to many more sites demanding age or identifying information from all users before allowing access. Requiring age verification from every user runs counter to the First Amendment right to access information anonymously and increases the collection of potentially sensitive information generally. The new rule's uncertainty is magnified for third party plug-in operators, who may now be liable for the decisions of publishers to embed their plug-in on sites directed to children."

12/18. The House approved, without amendment, HR 6671 [LOC | WW], by voice vote. This is a bill to revise the Video Privacy Protection Act to facilitate practices of social media web sites.

Rep. Bob Goodlatte (R-VA) introduced this bill on December 17, 2012. However, he also introduced an earlier version, HR 2471 [ LOC | WW], last year. HR 6671 contains the version adopted by the Senate Judiciary Committee (SJC) on November 29, 2012. See, November 29 red line markup of HR 2471.

Rep. Goodlatte introduced HR 2471 on July 8, 2011. The House Judiciary Committee (HJC) amended and approved this bill on October 13, 2011. The full House passed this bill on December 6, 2011.

The VPPA was enacted by the 100th Congress in 1988 just after the public debates and Senate hearings pertaining to the nomination of Judge Robert Bork to be a Justice of the Supreme Court, which involved disclosure of his video rental records. That bill was Public Law No. 100-68. It is codified at 18 U.S.C. § 2710.

The VPPA provides that "A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person".

The purpose of this bill is to allow companies, such as Facebook, to operate a web site that discloses users' video rentals and recommendations with an easy one time online opt-in procedure, rather than requiring consent every time the user wants to recommend a video.

Rep. Goodlattee stated in the House that "This bill is extremely similar to H.R. 2471, which passed the House overwhelmingly a year ago. This newer version incorporates provisions suggested by the Senate that allows greater consumer flexibility in their video sharing habits. I support these enhancements to the bill."

He explained that this bill updates the VPPA "to allow videotape service providers to facilitate the sharing on social media networks of the movies watched or recommended by users. Specifically, it is narrowly crafted to preserve the VPPA's protections for consumers' privacy, while modernizing the law to empower consumers to do more with their video consumption preferences, including sharing names of new or favorite TV shows or movies on social media in a simpler way. However, it protects the consumer's control over the information by requiring consumer consent before any of this occurs, and it makes clear that a consumer can opt in to the ongoing sharing of his or her favorite movies or TV shows without having to provide consent each and every time a movie is rented."

Rep. Goodlatte also stated that "It also makes clear that written affirmative consent can be provided through the Internet and can be withdrawn at any time. The bill we are considering today requires that the consent be distinct and separate from any other form setting forth other legal and financial obligations. Companies must provide consumers with the clear and conspicuous option to withdraw their consent to share at any time. Finally, a consumer's consent to share expires after 24 months unless the consumer chooses to opt in again.

12/18. The House approved, without amendment, S 3642 [LOC | WW], the "Theft of Trade Secrets Clarification Act of 2012", by a vote of 388-4. See, Roll Call No. 632. The Senate passed it last month. It is now ready for President Obama's signature.

Sen. Patrick Leahy (D-VT) and Sen. Herb Kohl (D-WI) introduced this bill on November 27, 2012. The Senate passed this bill, by unanimous consent, without debate, late on the same day. See, story titled "Senate Passes Theft of Trade Secrets Clarification Act" in TLJ Daily E-Mail Alert No. 2,477, November 28, 2012.

This bill would amend the Economic Espionage Act, which is codified at 18 U.S.C. § 1832, and which criminalizes theft of trade secrets. It is a response to the April 11, 2012 opinion of the U.S. Court of Appeals (2ndCir) in U.S. v. Aleynikov, App. Ct. No. 11-1126. It clarifies that theft of software source code can constitute a violation of Section 1832.

Rep. Bobby Scott (D-VA) stated in the House that "S. 3642 responds to a recent Federal court decision that exposed a gap in Federal law. In April of this year, the Second Circuit Court of Appeals held that the Federal statute prohibiting the theft of trade secrets does not apply to computer source code in some circumstances."

Rep. Scott continued that "In the Aleynikov case, the defendant, a computer programmer who worked for Goldman Sachs, electronically copied and remotely stored thousands of lines of source code from the company's internal, high-frequency trading system and then downloaded that code to his new employer's server after leaving Goldman Sachs."

Rep. Scott said that "Because the code that was stolen is a component of an internal computer system, the court found that it is not covered by the statute because it was not produced for, or placed in, a product in interstate or foreign commerce. This bill will close the gap exposed in that case by clarifying that the statute applies to both products and services which are used in or intended for use in interstate or foreign commerce."

12/18. The House approved, without amendment, HR 6621 [LOC | WW], an untitled bill that would make numerous changes to the Patent Act, by a vote of 308-89. See, Roll Call No. 631. 70 Republicans voted against this bill.

Rep. Smith introduced this bill on November 30, 2012. There has been no hearing or markup for any of the sections of this bill. See also, story titled "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012.

The Congress enacted the America Invents Act (AIA), HR 1249 [LOC | WW], earlier in this Congress. President Obama signed it into law on September 16, 2011. It is now Public Law No. 112-29.

Rep. Smith stated in the House that the "AIA fundamentally changes our Nation's innovation infrastructure. With any such substantive and wide-ranging legislation, unforeseen issues may arise as implementation occurs. H.R. 6621 corrects many of these issues."

Although, he only addressed two items in this bill. He said in opening that the bill will correct "an inadvertent scrivener's error" regarding "post-grant review estoppel provision in the Leahy-Smith AIA". He also addressed pre-GATT applications in response to statements by Rep. Dana Rohrabacher (R-CA).

Rep. John Conyers (D-MI) praised the bill. He said that it "clarifies that the Advice of Counsel section applies to civil actions commenced on or after the date of this legislation's enactment. Why is that important? Well, because the America Invents Act created a new section that prevents use of evidence of an accused infringer's failure to obtain advice of counsel, or his failure to waive privilege and introduce such opinion, to prove either willfulness or intent to induce infringement. This provision, however, failed to specify when the new authority would go into effect, and it makes a series of other technical clarifications to the act."

Rep. Mel Watt (D-NC) wrote in a statement submitted for the Congressional Record that "important adjustments have been made to ensure that inadvertent ``dead zones,´´ in which post grant review proceedings could not be initiated as intended, are eliminated. H.R. 6621 will also tighten language to prevent dilatory tactics and gamesmanship in the newly created derivation proceedings. A third fundamental correction involves PTO funding and will guarantee that all PTO administrative costs will be covered either by patent fees or trademark fees."

Pre GATT Applications. Section (m) of the bill is titled "Report on Pre-GATT Applications". This section may be directed at eliminating many of the several hundred of these pre June 7, 1995 applications. It requires that the USPTO submit a report to the Congress that identifies, among other things, "the inventor and assignee named on each such application".

Rep. Dana Rohrabacher (R-CA), who voted against the bill, stated that one of the patent system's "basic tenets has been the steadfast adherence to the principle of total confidentiality of a patent application until the patent is granted. Congress has repeatedly stood by that principle even though there have been many powerful forces in this country trying to eliminate that concept".

But, he continued that HR 6621 threatens this principal by requiring the U.S. Patent and Trademark Office (USPTO) to "submit a report to Congress on certain patent application sections. This report, as mandated by this bill, will include information about the applications that have been traditionally kept confidential, including the name of the inventor, which has always been confidential to prevent these inventors from attack by very powerful interests who would steal their invention."

Rep. Smith explained in rebuttal that "The report on pre-GATT applications refers to applications that were filed prior to the Uruguay Round amendments taking effect in June 1995. The 103rd Congress intended for a brief transition period as the United States patent system was updated. Unfortunately, a small number of applicants have engaged in clearly dilatory behavior and continue to maintain pending applications with effective filing dates that predate 1995. In fact, some of these applications have been pending for 20, 30, and even 40 years."

He continued that "The 103rd Congress never intended for such applications to stay pending for half a century. To remove such technology from the public domain in 2012, would bear no relation to the patent system's Constitutional purpose to promote the progress of science and the useful arts. Now it is important for the 113th Congress and the Public to learn fully about these applications from the USPTO. The Committee expects that the report will contribute to an understanding of whether these applications present special circumstances that require further action to protect the public's interests."

Rep. Smith added that "Those who may have concerns about this report must understand that there is no way to ``target´´ these submarine applications -- the targets are, in fact, the people who will be sued once these submarine patents surface. The real targets are American job creators like small businesses, innovators and university researchers. And the public has a right to know in advance if certain widely used and long known technology is about to be withdrawn from the public domain."

Rep. Smith concluded, "The patent system was never intended to be a playground for trial lawyers and frivolous lawsuits. Sound patents should issue in a timely manner and should be used to create wealth and jobs."

12/18. President Obama signed into law S 3486 [LOC | WW], the "Patent Law Treaties Implementation Act of 2012". See, White House news office release.

This act implements two patent law treaties, the "Hague Agreement Concerning International Registration of Industrial Designs", concluded in 1999, and the "Patent Law Treaty", concluded in 2000. The Senate did not ratify these treaties until 2007.

See also, story titled "Senate Judiciary Committee Approves Patent Law Treaties Implementation Act" in TLJ Daily E-Mail Alert No. 2,452, September 20, 2012.

12/18. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) in which it seeks comments regarding whether there should be a small claims process for patent enforcement.

The Copyright Office (CO) has an open inquiry regarding creation of a small claims process for copyright. However, that inquiry was promoted by members of Congress, and is related to efforts by members of Congress, the CO and others to enact broader legislation, sometimes referred to as "orphan works" legislation, that would diminish the rights of certain individual and small business rights holders.

See, stories titled "Copyright Office Seeks Comments on Creating a Process for Adjudicating Small Copyright Claims", "Orphan Works Legislation and Adjudicating Small Copyright Claims", and "Summary of First Round of Comments on Creating a Process for Adjudicating Small Copyright Claims" in TLJ Daily E-Mail Alert No. 2,445, September 11, 2012.

The CO also has an open inquiry on "orphan works". See, story titled "Copyright Office Issues Notice of Inquiry on Orphan Works" in TLJ Daily E-Mail Alert No. 2,468, November 2, 2012.

The USPTO's FR notice states that it seeks information regarding "whether there is a need and desire for this type of proceeding, in what circumstances is this proceeding needed if such a need exists, and what features this proceeding should possess."

"In particular the USPTO seeks information about core characteristics of a patent small claims proceeding including characteristics such as subject matter jurisdiction, venue, case management, appellate review, available remedies, and conformity with the U.S. constitutional framework", such as the 7th Amendment right to trial by jury."

Comments are due by March 18, 2013. See, FR, Vol. 77, No. 243, December 18, 2012, at Pages 74830-74831.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

The Senate will meet at 9:30 AM. It will resume consideration of HR 1 [LOC | WW], the vehicle for the supplemental appropriations bill.

Day two of a two day closed meeting of the U.S.-China Joint Commission on Commerce and Trade.

8:30 AM - 12:00 NOON. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee. The agenda includes presentations on cyber security coordination. See, notice in the Federal Register, Vol. 77, No. 230, November 29, 2012, at Pages 71169-71170. Location: NIST, Lecture Room A, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet by webcast. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Pages 65690-65691.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304. Capitol Visitor Center.

12:00 NOON. Federal Trade Commission (FTC) Chairman Jonathan Leibowitz, Sen. John Rockefeller (D-WV), Rep. Joe Barton (R-TX) and others, will hold a news conference to announce the release of the FTC's new COPPA rules. See, FTC notice. The Senate Commerce Committee (SCC) will webcast this event. Location: Room 253, Russell Building.

12:00 NOON - 2:00 PM. The Georgetown University's (GU) Georgetown Center for Business and Public Policy (GCBPP) will host an event titled "Challenge to the Net: What Happened in Dubai?" The speakers will be Jonathan McHale (Office of the U.S. Trade Representative, Deputy Assistant USTR for Telecommunications and Electronic Commerce Policy), Michael Wack (Department of State, Office of the U.S. Coordinator for International Communications and Information Policy), David Gross (Wiley Rein), Amy Alvarez (AT&T), and Jacquelynn Ruff (Verizon Communications). Lunch will be served. Twitter #GCBPPontheHill. See, notice and registration page. Location: Room B-318, Rayburn Building..

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

9:00 AM. The House Intelligence Committee (HIC) will hold a closed business meeting. The agenda includes "Investigative Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE". See, HIC notice. See also, story titled "House Intelligence Committee Report Finds Huawei and ZTE Could Undermine US National Security" in TLJ Daily E-Mail Alert No. 2,461, October 15, 2012. Location: Room HVC-304, Capitol Visitor Center.

9:30 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304. Capitol Visitor Center.

POSTPONED. 10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda contains no technology related items. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The Center for Strategic and International Studies (CSIS) will host panel discussion titled "The Results and Impact of the 2012 Korean Presidential Elections". See, notice. Location: CSIS, basement conference room, 1800 K St., NW.

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

Rep. Cantor's schedule states that the House will meet at 9:00 AM for legislative business.

Deadline to submit requests to participate in the U.S. Patent and Trademark Office (USPTO) January 11, 2013 roundtable on the possibility of changing USPTO rules of practice to require the disclosure of real party in interest information during patent prosecution and at certain times post-issuance. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70385-70389. See also, story titled "USPTO to Host Roundtable on Requiring Real Party in Interest Disclosures" in TLJ Daily E-Mail Alert No. 2,483, December 5, 2012.

EXTENDED TO JANUARY 25. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [205 pages in PDF] regarding incentive auctions. The FCC adopted this NPRM on September 28, and released the text on October 2. It is FCC 12-118 in Docket No. 12-268. See, notice in the Federal Register,  Vol. 77, No. 225, November 21, 2012, at Pages 69933-69992. See also, stories titled "FCC Adopts NPRM on Incentive Auctions" and "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012. See, extension notice in the Federal Register, Vol. 77, No. 239, December 12, 2012, at Page 73969.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding implementation of Phase II of the Mobility Fund, which pertains to universal service fund subsidies for mobile broadband. The FCC released this PN on November 27, 2012. It is DA 12-1853 in WC Docket No. 10-90 and WT Docket No. 10-208.  See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73586-73589.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding spectrum aggregation limits and analyzing spectrum holdings. The FCC adopted and released this item on September 28, 2012. It is FCC 12-119 in WT Docket No. 12-269. See, notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages 61330-61350. See also, TLJ story titled "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [18 pages in PDF] regarding the amateur radio service. The FCC adopted this NPRM on October 1, 2012, and released the text on October 2. It is FCC 12-121 in WT Docket Nos. 12-283 and 09-209. See, notice in the Federal Register, Vol. 77, No. 206, October 24, 2012, at Pages 64947-64949.

Christmas. This is a federal holiday. See, OPM list of 2012 federal holidays.

221st Birthday of Charles Babbage.

EXTENDED TO JANUARY 7. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its November 1 Public Notice (PN) seeking updated information and comment on review of hearing aid compatibility regulations. This PN is DA 12-1745 in WT Docket No. 10-254. See, November 27 extension Public Notice (DA 12-1898) and extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72294-72295.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [21 pages in PDF] regarding applications and notifications from foreign carriers or affiliates of foreign carriers for entry into the U.S. market for international telecommunications services and facilities under section 214 of Communications Act. This pertains to the effective competitive opportunities test or ECO Test. The FCC adopted this NPRM on October 10, and released the text on October 11. It is FCC 12-125 in IB Docket No. 12-299. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70400-70407.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [7 pages in PDF] regarding hearing aid compatibility of wireless handsets. This PN is DA 12-1745 in WT Docket No. 10-254. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70407-70409.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its December 3, 2012 Public Notice (PN) that seeks comments on the FCC Media Bureau's November 14, 2012 report [121 pages in PDF] regarding regulation of media ownership. The December 3 PN is DA 12-1946. The November 14 report is DA 12-1667. See also, notice in the Federal Register, Vol. 77, No. 237, Monday, December 10, 2012, at Pages 73461-73462, and story titled "Sen. Sanders and Others Urge FCC to Continue Ancient Newspaper Broadcast Cross Ownership Rule" in TLJ Daily E-Mail Alert No. 2,484, December 6, 2012.

12/19. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the effective date for, changes to its rules of practice in patent cases to implement the micro entity provision of the America Invents Act (AIA). Under this provision certain patent fees are reduced by 75% for micro entities. The effective date is March 19, 2013. See, FR, Vol. 77, No. 244, December 19, 2012, Pages 75019-75035.

12/18. The U.S. Court of Appeals (11thCir) issued a revised opinion in the Hospitallers trademark case. Hospitallers have been around since the 11th Century. This is a trademark dispute between two current Hospitaller entities. The plaintiff is an order of the Roman Catholic Church. The defendant is an ecumenical group. The plaintiff filed a complaint in the U.S. District Court (SDFl) alleging trademark infringement (for using marks confusingly similar to those that the plaintiff had registered with the USPTO) and false advertising claims (for claiming a Middle Ages pedigree) under the Lanham Act, and state law claims for unfair competition and violation of the Florida Deceptive and Unfair Trade Practices Act. The defendant counterclaimed for fraud upon the USPTO (for failure disclosure the defendant's use of similar marks). The defendant prevailed in the District Court on all claims. The Court of Appeals affirmed in part (on the false advertising claim) and reversed in part. The Court of Appeals reversed on the fraud on the USPTO claim, and vacated the cancellation of marks. It vacated and remanded on the infringement claim. This case is Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 11-15101, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 9:09-cv-81008-KLR. Judge Wilson wrote the opinion of the Court of Appeals, in which Judges Pryor and Martin joined.

12/18. The Department of Justice's (DOJ) Antitrust Division settled with another defendant, Penguin, in the e-books antitrust action that it filed against Apple and five e-book publishers in April. Only Apple and Holtzbrinck Publishers (Macmillan) continue to contest the action.

The DOJ filed a complaint [36 pages in PDF] on April 11, 2012 in the U.S. District Court (SDNY) alleging violation of Section 1 of the Sherman Act in connection alleged conspiring to increase the prices that consumers pay for e-books.

The DOJ simultaneously settled with Hachette (which includes Little Brown), Harper Collins, and Simon & Schuster. See, stories titled "DOJ Sues Apple and Book Publishers Alleging E-Book Price Collusion" and "Analysis of DOJ's Sherman Act Claim Against Apple and E-Book Publishers", and related stories in TLJ Daily E-Mail Alert No. 2,368, April 11, 2012.

On September 6, 2012, the District Court released its Opinion and Order [48 pages in PDF] approving the settlement agreement between the DOJ and the settling defendants, Hachette, HarperCollins, and Simon & Schuster. See, story titled "District Court Approves Settlement in Apple E-Books Case" in TLJ Daily E-Mail Alert No. 2,442, December 6, 2012.

Jamilla Ferris, Chief of Staff for the Antitrust Division, stated in a release that "Since the department’s settlement with Hachette, HarperCollins and Simon & Schuster, consumers are already paying lower prices for the e-book versions of many of those publishers' new releases and bestsellers".

The DOJ added that "A trial against Macmillan and Apple currently is scheduled to begin in June 2013."

12/19. The Federal Trade Commission (FTC) granted early termination on December 18 of the HSR waiting period for the transaction involving Toshiba Corporation and NuFlare Technology, Inc. See, FTC notice of December 19. NuFlare is a semiconductor company.

12/19. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that Connected Media Experience, Inc. filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 77, No. 244, December 19, 2012, at Pages 75190-75191

12/19. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the ODVA, Inc. filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 77, No. 244, December 19, 2012, at Page 75191.

12/18. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the Cable Television Laboratories, Inc. (Cable Labs) filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 77, No. 243, December 18, 2012, at Page 74877.

12/18. A trial jury of the U.S. District Court (NDCal) returned of verdict of guilty in U.S. v. Shiu Lung Leung. This was a retrial. The District Court declared a mistrial as to this defendant following a trial concluded in March. This is another in the long running series of Department of Justice's (DOJ) Antitrust Division's prosecutions involving price fixing for thin film transistor liquid crystal displays (TFT-LCD). Leung is a former senior executive of the Taiwan based AU Optronics Corp. AU Optronics, two of its executives, and its US subsidiary were previously found guilty. See, DOJ release.

12/18. Former Judge Robert Bork (USCA/DC) died. Bork was best known for his very public Supreme Court confirmation battle in 1987. Bork's scholarly writings had a profound effect upon the transformation of antitrust law. In works such as The Antitrust Paradox (first published in 1978), he argued that antitrust law should promote consumer welfare, not protect competitors, and that application of the law should be based upon economic analysis, and advance economic efficiency. See, statement of Sen. Orrin Hatch (R-UT).

12/18. The Federal Communications Commission (FCC) announced that it seeks applications for the position of Director of Health Care Initiatives. The deadline to apply is January 7, 2013. See, notice.

12/17. The Senate confirmed Fernando Olguin to be a Judge of the U.S. District Court for the Central District of California. See, Congressional Record, December 17, 2012, at Page S8094.

12/17. The Senate confirmed Thomas Durkin to be a Judge of the U.S. District Court for the Northern District of Illinois. See, Congressional Record, December 17, 2012, at Page S8094.

12/17. Lona Nallengara was named acting Director of the Securities and Exchange Commission's (SEC) Division of Corporation Finance. He will replace Meredith Cross, who is leaving the SEC at the end of the year. See, SEC release.

12/17.  John Ramsay was named acting Director of the Securities and Exchange Commission's (SEC) Division of Trading and Markets. He will replace Robert Cook. See, SEC release.

12/17. Time Warner Cable announced in a release that Kevin Leddy has been named EVP, Corporate Strategy.

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