Tech Law Journal Daily E-Mail Alert
Monday, December 24, 2012, Alert No. 2,497.
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Senate Approves Resolution on Sex Based Interactive Computer Service

12/20. The Senate approved SRes 439 without objection. Sen. Richard Blumenthal (D-CT) and others introduced this resolution on April 25, 2012.

It states that it is "Resolved, That the Senate ... calls on Village Voice Media Holdings, LLC to act as a responsible global citizen and immediately eliminate the ``adult entertainment'' section of the classified advertising website Backpage.com to terminate the website's rampant facilitation of online sex trafficking".

The House has not passed it. However, there are two related resolutions pending in the House, HRes 646 and HRes 649.

People who use Backpage.com may commit crimes, and be subject to criminal prosecution. However, the owners and operators of Backpage.com have Section 230 immunity.

47 U.S.C. 230 provides in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The U.S. District Court (EDMo) upheld this immunity in its August 15, 2011, opinion, also reported at 809 F.Supp.2d 1041. See, M.A. v. Village Voice Media Holdings, LLC, U.S. District Court for the Eastern District of Missouri, D.C. No. 4:10cv1740 TCM, Magistrate Judge Thomas Mummert presiding.

Craigslist.com voluntarily removed the adult services section of its web site two years ago.

USPTO Urges Enactment of Rep. Smith's Patent Bill

12/20. The U.S. Patent and Trademark Office's (USPTO) Dana Colarulli wrote a short piece urging passage of HR 6621 [LOC | WW], an untitled bill that would make numerous changes to patent law.

Rep. Lamar Smith (R-TX) introduced this bill on November 30, 2012. See, story titled "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012. The House Judiciary Committee (HJC) held no hearings or mark up sessions. The House passed this bill on December 18, 2012. See, story titled "House Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 4,494, December 19, 2012.

The Senate Judiciary Committee (DJC) has held no hearings or mark up sessions. The Senate has not yet passed this bill.

Colarulli wrote that "It is important to move ahead this year with this pending legislation containing helpful amendments".

He explained that the bill "makes a number of corrections and improvements to patent law which have been identified as necessary or advisable during the public reviews of proposed rulemaking, as well as discussions and consultations that occurred during the past year".

Rep. Dana Rohrabacher (R-CA) and 69 other House Republicans, along with 19 Democrats, voted against this bill in the House, in part because of its Section (m), which may be a prelude to eliminating many of the several hundred still pending pre June 7, 1995 applications.

Colarulli wrote that this section "requires the USPTO to report on the handling of pre-1995, pre-Uruguay Round applications that have now been pending for more than a decade and a half."

He added that "This bill does not address one issue related to the estoppel standard for possible federal court litigation following the completion of a post-grant review proceeding. Clarity is needed to ensure that the provision functions as Congress intended and I am hopeful it will be addressed in a future bill in the next Congress."

Colarulli is the Director of the USPTO's Office of Governmental Affairs. Before joining the USPTO he worked for the Intellectual Property Owners Association.

Senate Confirms Jon Tigar and Other District Court Judges

12/21. The Senate confirmed Jon Tigar to be a Judge of the U.S. District Court (NDCal). See, Congressional Record, December 21, 2012, at Page S 8380.

President Obama nominated him in June. See, White House news office release and release. He has been a California state trial court judge since 2002 (Alameda County Superior Court). Before that, he worked for the law firm of Keker & Van Nest.

Notably, the Senate has not yet voted on the nomination of William Orrick to be a Judge for the same court, which hears many important patent and other technology related cases. See, story titled "Obama Nominates Two for USDC Northern District of California" in TLJ Daily E-Mail Alert No. 2,397, June 15, 2012.

Also, on December 21, the Senate confirmed both Matthew Brann and Malachy Mannion to be Judges of the U.S. District Court (MDPenn). See, Congressional Record, December 21, 2012, at Page S 8380. Sen. Patrick Toomey (R-PA) supported both nominations. Mannion has been a federal Magistrate Judge since 2001.

With a few days left for the Senate to act, there are now only six persons who have been nominated by President Obama for the District Court, and approved by the Senate Judiciary Committee (SJC), but not yet voted on by the full Senate. Also, four of these were only approved by the SJC on December 6. Hence there are only two pending District Court nominees who have been held up for a significant amount of time.

The six pending District Court nominees are:

  • William Orrick (NDCal)
  • Brian Davis (MDFl)
  • Katherine Failla (SDNY), approved by the SJC on December 6.
  • Troy Nunley (EDCal), approved by the SJC on December 6.
  • Sheri Chappell (MDFl), approved by the SJC on December 6.
  • Pamela Ki Mai Chen (EDNY), approved by the SJC on December 6.

Also, Mark Barnett, who has been nominated to be a Judge of the U.S. Court of International Trade, and who was approved by the SJC on December 6, has not yet been considered by the full Senate.

Pending Court of Appeals Nominees

12/22. There are four pending Court of Appeals nominees who have been nominated by President Obama, and approved by the Senate Judiciary Committee (SJC), but have not been confirmed by the full Senate, or withdrawn by the President. The four are:

  • Richard Taranto (Federal Circuit)
  • William Kayatta (1st Circuit)
  • Patty Schwartz (3rd Circuit)
  • Robert Bacharach (10th Circuit)

The Senate stopped confirming Court of Appeals nominees in August, as is customary in Presidential election years. See, story titled "Confirmations and Presidential Elections" in TLJ Daily E-Mail Alert No. 2,417, August 1, 2012.

However, while President Obama won re-election, the Senate has not confirmed any pending Court of Appeals nominees since the election.

Sen. Patrick Leahy (D-VT), Chairman of the SJC, gave another of his frequent speeches on judicial nominees in the Senate on December 21. He again complained about Republicans' use of the filibuster to block Court of Appeals nominees. See, Congressional Record, December 21, 2012, at Pages S8375-7.

Senate Democrats initiated the practice of using the filibuster to block Court of Appeals nominees during the Bush administration. Metaphorically, it was the Senate Democrats who let the genie out of the bottle, to serve their will. Now, they are distraught that they cannot get the genie back into the bottle.

In his December 21 speech, Sen. Leahy attempted to distinguish Republicans' use of the filibuster from Democratics' use of the filibuster. Democrats, he said, "generally had reasons to do so". They had "substantive concerns". In contrast, Republicans' filibusters have been "meritless".

Richard Taranto and the Federal Circuit

12/24. Richard Taranto is one of four Court of Appeals nominees blocked by filibuster. He might have a particular impact upon technology law, if confirmed.

Republican Senators remain silent in public regarding the Taranto nomination. Democratic Senators are not publicly making a case for confirmation of Taranto.

This article reviews Taranto's background and experience. It also provides information regarding why the Taranto nomination has not come up for a vote, what things might factor into Senators' voting decisions if he were to come up for a vote, and how he might affect the development of technology related areas of law if confirmed.

Because of the length of this article, it is published in the TLJ web site.

In This Issue
This issue contains the following items:
  Senate Approves Resolution on Sex Based Interactive Computer Service
  USPTO Urges Enactment of Rep. Smith's Patent Bill
  Senate Confirms Jon Tigar and Other District Court Judges
  Pending Court of Appeals Nominees
  Richard Taranto and the Federal Circuit
Washington Tech Calendar
New items are highlighted in red.
Monday, December 24

The House will meet in pro forma session only.

The Senate will meet in pro forma session only at 12:00 NOON.

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.

Tuesday, December 25

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

The House will not meet.

The Senate will not meet.

Wednesday, December 26

221st Birthday of Charles Babbage.

The House will not meet.

The Senate will not meet.

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.

Thursday, December 27

The House will meet at 2:00 PM.

The Senate will meet at 10:00 AM.

Friday, December 28

109th birthday of John von Neumann.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [42 pages in PDF] regarding disability access to televised emergency information. This NPRM is FCC 12-142 in MB Docket No. 12-107. The FCC adopted it on November 16, and released the text on November 19. See, notice in the Federal Register, Vol. 77, No. 229, November 28, 2012, at Pages 70970-70987.

Monday, December 31

No events listed.

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