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Monday, March 25, 2013, Alert No. 2,540.
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DOJ Business Review Letter Declines to State Intentions on IPXI Patent Licensing Proposal

3/26. The Department of Justice's (DOJ) Antitrust Division sent a business review letter (BRL) to counsel for the Intellectual Property Exchange International regarding its planned exchange of unit license rights (ULRs) to a defined set of patents. However, this letter merely concludes that the DOJ "declines to state its present enforcement intentions" regarding this proposal.

William BaerWilliam Baer (at right), the recently confirmed Assistant Attorney General in charge of the Antitrust Division, signed the letter, addressed to Garrard Beeney of the New York City office of the law firm of Sullivan & Cromwell, counsel for the Intellectual Property Exchange International, which also uses the near acronym of IPXI.

The IPXI states in its web site that it is "the world's first financial exchange that facilitates non-exclusive licensing and trading of intellectual property (IP) rights with market-based pricing and standardized terms. The result is an exchange that operates under two core principles: transparency and efficiency. The initial product traded on IPXI is a Unit License Right (ULR) contract."

The DOJ stated in a release that "IPXI proposes to create a proprietary market for patent licenses. To do so, the company intends to obtain exclusive patent licenses that it will then sublicense through the sale of tradable instruments called ULRs, which are standardized licenses for defined sets of patents and uses under terms and conditions set jointly with patent holders. As part of the process, IPXI will review the patent rights at issue by examining validity, current infringement and other issues, and determine market interest to license those patents."

The DOJ continued that "IPXI may become the exclusive licensor of patents or patent bundles that might otherwise compete. IPXI has proposed certain procedures that might mitigate the likelihood that anticompetitive effects will materialize."

However, the DOJ release states, "because IPXI cannot predict in advance the patents or markets that might be at issue, the department is unable to engage in the fact-intensive analysis necessary to assess the likely competitive effects of the proposal. In addition, given the novelty of IPXIs proposal, it is possible that other potential competitive concerns may later emerge once IPXIs platform is operational."

The BRL states that "IPXI's proposed exchange potentially could generate efficiencies for the IP marketplace and encourage innovation through increased licensing efficiency, sublicense transferability, and greater transparency."

However, it also states that "In addition to the efficiencies it may generate, IPXIs request raises antitrust issues that include (1) the pooling of patents from multiple patent holders, (2) the listing of competing ULRs, and (3) the sharing of competitively sensitive information. Given the nature of IPXIs novel business model, the Department also recognizes that other potential competitive concerns may later emerge once it is operational."

The BRL concludes that the DOJ "cannot prospectively determine that there will be no adverse competitive effects from the operation of IPXIs proposed exchange. Therefore, though the proposal could potentially produce certain efficiencies, the Department withholds judgment at this time and declines to state its enforcement intentions."

Gerard Pannekoek, P/CEO of IPXI, stated in a release that "We believe this letter from the Department of Justice confirms our long-standing view that IPXI is innovative and promotes efficiencies. With this review complete, we anticipate announcing very soon the official launch of the marketing period for our first offerings that will pave the way for trading on the Exchange."

He added that "those few practices that the Department identified as potential 'risks' are largely practices in which IPXI will not engage. We are confident that when our Exchange is in full operation, we will meet the most stringent of any test under the competition laws".

The DOJ Antitrust Division's rules governing its business review process are codified at 28 C.F.R. 50.6.

Also, the FTC issues advisory opinions on competition issues. Its rules are codified at at 16 CFR 1.1-1.4. See also, story titled "FTC Releases Guidance on Requesting Advisory Opinions on Competition Issues" in TLJ Daily E-Mail Alert No. 2,252, June 30, 2012.

Copyright Office Issues Notice of Inquiry on Improving Its IT

3/22. The Copyright Office (CO) published a notice in the Federal Register (FR) that announces a notice of inquiry (NOI) regarding potential improvements and technical enhancements to the information
technology platforms that support its registration and recordation functions.

The CO seeks comments on "how stakeholders use the current online offerings of the Copyright Office, especially with respect to registration and recorded documents, and how the current offerings meet, fail to meet, or exceed user expectations".

It also seeks comments on "how stakeholders would like to interact with the Copyright Office electronically in the future, or, put differently, what online services, or aspects of existing online services stakeholders would like to see."

More specifically, the CO seeks comments on the CO's electronic registration services and other portals and interfaces. The CO seeks comments on "the nature and scope of information captured during the course of the registration and recordation processes, including that which could be captured through user input, or through metadata harvesting", and "metadata standards in particular industries that the Copyright Office might adopt or incorporate into its systems (e.g., IPTC for photography; ISRC for sound recordings; ONIX for books)". (Parentheses in original.)

The CO also seeks comments on "data storage and security standards for electronic copyright deposits, including the development of policies and best practices for data retention and migration".

It also seeks "new ways of searching and accessing registration and recordation data and/or registration deposit metadata (e.g., image or music search technology)". (Parentheses in original.)

The CO notice does not mention orphan works, or how orphan works legislation would undermine the ability of photographers and others creators of non-text based works to enforce their copyrights. Effective search systems for non-text based works would limit the harm inflicted by orphan works legislation.

Finally, the CO seeks comments on "the integration of third-party databases of copyright ownership and licensing information (such as those maintained by collective management organizations) and related technologies with data maintained by the Copyright Office". (Parentheses in original.)

Comments are due by May 21, 2013. The CO personnel responsible for this proceeding are Douglas Ament and Christopher Reed. See, FR, Vol. 78, No. 56, March 22, 2013, at Pages 17722-17724.

USPTO Issues Corrected Patent Fees Rule

3/20. 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, its revisions to its fee setting rule published in the FR on January 18, 2013.

The USPTO wrote these rules to implement Section 10 of HR 1249 [LOC | WW] (112th Congress), the "Leahy-Smith America Invents Act". See also, story titled "USPTO Releases Patent Fees NPRM" in TLJ Daily E-Mail Alert No. 2,441, September 5, 2012.

The effective date of these changes is March 20, 2013. The deadline to submit comments is May 20, 2013.

See, original notice in the FR, Vol. 78, No. 13, January 18, 2013, at Pages 4211-4291, and correction notice in the FR, Vol. 78, No. 54, March 20, 2013, at Pages 17102-17108.

NAF Wants to End Regulatory Capture at FCC

3/27. The New America Foundation (NAF), Free Press (FP) and other interest groups sent a letter to President Obama regarding the appointment of a new Chairman of the Federal Communications Commission (FCC).

They wrote that that the Obama administration "must recognize the severe mismanagement and lack of progress that occurred under Chairman Julius Genachowski and choose a strong advocate for the public interest."

They want the next Chairman to promote "unlocked mobile devices". See, story titled "Obama Administration Urges Creation of DMCA Anti-Circumvention Exemption for Unlocking Cell Phones" in TLJ Daily E-Mail Alert No. 2,530, March 5, 2013. See also, story titled "Cell Phone Unlocking Bills Introduced" and related stories in TLJ Daily E-Mail Alert No. 2,533, March 11, 2013.

They also want "open wireless platforms", "strong open Internet rules", "media diversity", and the "information needs of communities", among other things.

They wrote that "After decades of industry-backed chairmen, we need a strong consumer advocate and public interest representative at the helm. It's time to end regulatory capture at the FCC and restore balance to government oversight."

More Intellectual Property News

3/25. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announces, recites, describes and sets the effective date (March 25, 2013) for, its revisions to its rules of practice to implement the changes with respect to inter partes review that are set forth in Section 1(d) of the Leahy-Smith America Invents Act. The USPTO notice states that "Consistent with the statutory changes, this final rule eliminates the nine-month ``dead zone for filing an inter partes review petition challenging a first-to-invent patent or reissue patent. Under the final rule, a petitioner may file an inter partes review petition challenging a first-to-invent patent or reissue patent upon issuance, including during the first nine months after issuance." See, FR, Vol. 78, No. 57, March 25, 2013, at Pages 17871-17874.

3/21. Sen. Bill Nelson (D-FL) and Sen. Richard Burr (R-NC) introduced S 647 [LOC | WW], a bill to modify the prohibition on recognition by U.S. courts of certain rights relating to certain marks, trade names, or commercial names. It was referred to the Senate Judiciary Committee. Neither Sen. Nelson nor Sen. Burr is a member.

3/14. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announces, recites, describes and sets the effective date (March 16, 2013) for, its revisions to its rules that implement the first inventor to file provisions of the Leahy-Smith America Invents Act. The USPTO published the original rule on February 14, 2013. See, original notice in the FR, Vol. 78, No. 31, February 14, 2013, at Pages 11023-11059, and corrections notice in the FR, Vol. 78, No. 50, March 14, 2013, at Pages 16182-16184.

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In This Issue
This issue contains the following items:
  DOJ Business Review Letter Declines to State Intentions on IPXI Patent Licensing Proposal
  Copyright Office Issues Notice of Inquiry on Improving Its IT
  USPTO Issues Corrected Patent Fees Rule
  NAF Wants to End Regulatory Capture at FCC
  More Intellectual Property News
Washington Tech Calendar
New items are highlighted in red.
Tuesday, March 26

The House will not meet.

The Senate will meet at 4:30 PM in pro forma session only.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. Samsung, App. Ct. No. 2012-1600, an appeal from the U.S. District Court (NDCal) in a patent infringement case involving technology for smart phones and tablets. The District Court case is 11-CV-1846-LHK, Judge Lucy Koh presiding. See also, stories titled "Trial Jury Returns Verdict In Apple v. Samsung" in TLJ Daily E-Mail Alert No. 2,437, August 25, 2012, and "Apple Files Patent Infringement Complaint Against Samsung" in TLJ Daily E-Mail Alert No. 2,222, April 18, 2011. Location: Courtroom 201.

12:00 NOON - 1:30 PM. The Georgetown University's Center for Business and Public Policy (CBPP) will host a panel discussion titled "Europe/U.S. Trade Deal: Promise and Reality". The speakers will be John Herrmann (Kelly Drye), Thea Mei Lee (AFL-CIO), Dave Salmonsen (American Farm Bureau Federation), Michael Smart (Rock Creek Global Advisors), and Bob Vastine (CBPP). Lunch will be served. See, notice. Location: Room B-318, Rayburn Building.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "The iPad for Lawyers: Incorporating Tablet Computing Into Your Practice". Prices vary. CLE credits. See, notice.

4:30 - 6:00 PM. The American Enterprise Institute (AEI) will host an event titled "Arbitration and the Constitution". The speakers will be Lee Otis, Peter Rutledge (University of Georgia School of Law), Paul Bland (Public Justice), James Chen (University of Louisville law school), and Michael Greve (George Mason University School of Law). See, notice. Location: AEI, 1150 17th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) comments objecting to the Section 214 application of Insight Phone of Ohio to discontinue certain domestic telecommunications services in Columbus, Ohio. See, FCC Public Notice [3 pages in PDF], DA 13-380 in WC Docket No. 13-64.

Deadline to submit data to the Federal Communications Commission (FCC) to assist it in evaluating the forbearance petition filed by CenturyLink. See, FCC Public Notice [7 pages in PDF], DA 13-337 in WC Docket No. 12-60.

Wednesday, March 27

The House will not meet.

The Senate will not meet.

8:00 AM - 4:00 PM. Day one of a two day meeting of the Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC). The agenda includes "Shared Use Frequency Spectrum Issues Update". See, notice in the Federal Register, Vol. 78, No. 49, March 13, 2013, at Page 16030. Location: Courtyard Marriott Capitol Hill/Navy Yard Hotel, 140 L St., SE.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Why Every Lawyer Should Understand The Basic Concepts Of Enterprise Risk Management (ERM) -- 2013". Prices vary. CLE credits. Registrations and cancellations are due by 12:00 NOON on March 26. See, notice. Location: Bingham McCutchen, 2020 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making (NPRM) regarding implementing allocation decisions from the World Radiocommunication Conference held in Geneva in 2007 (WRC-07) regarding spectrum between 108 MHz and 20.2 GHz, and changing service rules for this spectrum. The FCC adopted this NPRM on November 15, 2012, and released the text on November 19. It is FCC 12-140 in ET Docket No. 12-338. See, notice in the Federal Register, Vol. 77, No. 248, December 27, 2012, at Pages 76250-76287.

Thursday, March 28

The House will meet at 11:00 AM in pro forma session only.

The Senate will not meet.

8:00 AM - 4:00 PM. Day two of a two day meeting of the Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC). The agenda includes "Shared Use Frequency Spectrum Issues Update". See, notice in the Federal Register, Vol. 78, No. 49, March 13, 2013, at Page 16030. Location: Courtyard Marriott Capitol Hill/Navy Yard Hotel, 140 L St., SE.

9:30 AM. The Internet Innovation Alliance (IIA) will host an event titled "Where Are We Going, Where Have We Been?". The speakers will be former Rep. Rick Boucher (D-VA) and former Rep. Mike Oxley (R-OH). Breakfast will be served. RSVP to info at internetinnovation dot org. Location: Room 2322, Rayburn Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "Monopoly Differential Pricing and Welfare". See, paper [30 pages in PDF] with the same title by Yongmin Chen (University of Colorado at Boulder) and Marius Schwartz. The speaker will be Chen. Differential pricing is employed, for example, when producers of intellectual property based products such as books sell at different prices in different countries or to different classes of consumers. It is the practice that the Supreme Court undermined in its March 19, 2013 opinion [74 pages in PDF] in John Wiley & Sons v. Supap Kirtsaeng. See, story titled "Supreme Court Holds First Sale Doctrine Applies Regardless of Location" in TLJ Daily E-Mail Alert No. 2,536, March 19, 2013. Also, geographically based differential pricing in telecommunications is barred by regulation. For more information, contact Christopher Metcalf at cmetcalf at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: Room 8089, 1800 M St., NW.

5:30 - 7:30 PM. Deborah Cohn, Commissioner for Trademarks at the U.S. Patent and Trademark Office (USPTO) and Gerard Rogers, Chief Administrative Trademark Judge of the Trademark Trial and Appeal Board, will speak at an event titled "The Trademark Office Speaks". The USPTO states that this is a DC Bar Association event. The DC Bar bars reporters from this event. No webcast. Prices vary. No CLE credits. See, notice. Location: Hotel Monaco, 700 F. St., NW.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Wireline
Competition Bureau (WCB) in response to its Public Notice (PN) regarding implementation of Connect America Phase II subsidy program. This PN is DA 13-284 in WC Docket No. 10-90. The WCB released it on February 26, 2013. See also, notice in the Federal Register, Vol. 78, No. 51, March 15, 2013, at Pages 16456-16460.

Friday, March 29

The House will not meet.

The Senate will meet at 10:30 AM in pro forma session only.

Supreme Court conference day. See, Supreme Court calendar.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding state applications for renewal of the certification of their state TRS programs pursuant to Title IV of the Americans with Disabilities Act (ADA). See, DA 13-275 in CG Docket No. 03-123, and notice in the Federal Register, Vol. 78, No. 48, March 12, 2013, at Pages 15722-15724.

Saturday, March 30

Deadline to submit to the Federal Communications Commission's (FCC) comments and oppositions to petitions for exemption from the FCC's requirements to closed caption television programming. See, Public Notice [3 pages in PDF], DA 13-312 in CG Docket No. 06-181, released on February 28, 2013.

Sunday, March 31

? 5:00 PM. Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for the National Medals of Technology and Innovation. See, USPTO notice The USPTO subsequently published a notice in the Federal Register that sets the deadline at April 1. See, FR, Vol. 78, No. 1, January 2, 2013, at Page 90.

Monday, April 1

The House will not meet the week of April 1 through April 5, except for pro forma sessions. The House will return on Tuesday, April 9. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet the week of April 1 through April 5, except for pro forma sessions. The Senate will return on Monday, April 8.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Chrimar Systems v. Foundry Networks, App. Ct. No. 2012-1641, an appeal from the U.S. District Court (EDMich) in a patent case. Panel A. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for the National Medal of Technology and Innovation. See, notice in the Federal Register, Vol. 78, No. 1, January 2, 2013, at Page 90. See also, "National Medal of Technology and Innovation Recipients Announced" in TLJ Daily E-Mail Alert No. 2,498, December 26, 2012. (The USPTO announced in an earlier notice that the deadline is 5:00 PM on March 31.)

Tentative date for the Federal Trade Commission (FTC) to announce the winners of its competition regarding developing a solution for blocking illegal robocalls on landlines and mobile phones. See, notice in the Federal Register, Vol. 77, No. 205, October 23, 2012, at Pages 64802-64808.

Deadline to submit comments to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) in response to its Public Notice (PN) regarding "Rate of Return for Connect America Cost Model". The FCC released this PN on February 28, 2013. It is DA 13-311 in WC Docket No. 10-90. See also, notice in the Federal Register, Vol. 78, No. 56, March 22, 2013, at Pages 17624-17625.

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to the petitions for reconsideration filed in the FCC's low power radio service proceeding, MB Docket No. 99-25. See, FCC notice, and notice in the Federal Register, Vol. 78, No. 44, March 6, 2013, at Page 14490. See for example, petition filed by the Prometheus Radio Project.

Tuesday, April 2

The Senate will meet at 10:45 AM in pro forma session only.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cisco Systems v. Alberta Telecommunications Research Center, App. Ct. No. 2012-1687, an appeal from the U.S. District Court (NDCal) in a patent case involving technology for telecommunications networks. Panel D. Location: Courtroom 402, 717 Madison Place, NW.

1:00 - 2:00 PM. The law firm of Fulbright & Jaworski will host a webcast seminar titled "International Brand Management -- How to Protect Your Company's Most Important Asset Worldwide". The speakers will be Travis Bachman (Carlson Companies), Frances Drummond (Norton Rose Australia), Patrick Gallagher (Fulbright & Jaworski), Paul Mussell (NCS Pearson, Inc.), and Ann Wessberg (Target Corporation).