2/7. The Department of Justice's (DOJ) Antitrust Division announced in a release that it has closed its investigation into Samsung's assertion against Apple of rights in standards essential patents (SEPs) subject to fair, reasonable and non-discriminatory (FRAND) commitments.

The DOJ wrote that it is "closing of its investigation into Samsung Electronics Co. Ltd.'s use of its portfolio of standards-essential patents that it had committed to license to industry participants on fair, reasonable, and non-discriminatory terms (SEPs) to exclude certain Apple, Inc. products from the U.S. market".

It added that its investigation "focused on Samsung’s attempts to use its SEPs to obtain exclusion orders" from the U.S. International Trade Commission (USITC) "relating to certain iPhone and iPad models."

The USITC issued a Section 337 exclusion order in June of 2013 banning importation of certain Apple devices that infringed certain Samsung patents. See, story titled "USITC Enjoins Importation of Certain Older iPhones and iPads" in TLJ Daily E-Mail Alert No. 2,570, June 4, 2013.

However, the U.S. Trade Representative, Michael Froman, overturned that exclusion order in August.

The DOJ concluded on February 7 that "As a result of the USTR's action, the Antitrust Division has determined that no further action is required at this time. The Antitrust Division is therefore closing its investigation into Samsung’s conduct, but will continue to monitor further developments in this area."

Various US entities work under sometimes conflicting policy objectives -- promoting innovation by conferring exclusive rights in inventions, promoting competition and consumer welfare through application of antitrust law, protecting national security, and protecting US economic interests from foreign competition.

The U.S. Patent and Trademark Office (USPTO) has authority to issue patents. Actions for damages for infringement, and for injunctive relief, lie in the U.S. District Court.

In addition, the USITC has authority to issue exclusion orders to protect patents rights. Section 337, which is codified at 19 U.S.C. § 1337, provides, in part, that may issue such orders in the case of "The importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that ... infringe a valid and enforceable United States patent or a valid and enforceable United States copyright registered under title 17".

The Federal Trade Commission (FTC) and DOJ both enforce antitrust laws. They have divided their responsibilities by industry sectors. The DOJ handles telecommunications. Federal courts have construed the purpose of these statutes to be protection of competition and consumer welfare.

The DOJ and USPTO issued a joint policy statement [10 pages in PDF] dated January 8, 2013 on the subject of reconciling the policy goals of patent protection with competition promotion. See also, story titled "DOJ and USPTO Issue Statement on Injunctive Relief for Infringement of SEPs Subject to FRAND Commitments" in TLJ Daily E-Mail Alert No. 2,506, January 9, 2013.

Apple is a US company. Samsung is a Korean company. The two compete in the sale of smart phones. Both  hold large smart phone patent portfolios. Both filed complaints against the other in the District Courts, and with the USITC. The USITC issued two exclusion orders based upon patent infringement -- one directed at Apple, and one directed a Samsung.

The President may overturn these exclusion orders within 60 days, pursuant to 19 U.S.C. § 1337(j). As a practical matter, the President acts upon the recommendation of the USTR, who ordinarily denies requests to overturn exclusion orders. However, Froman overturned the Apple order, but not the Samsung order. See, story titled "USTR Froman Disapproves USITC Exclusion Order in Samsung Apple Proceeding" in TLJ Daily E-Mail Alert No. 2,587, August 6, 2013, and story titled "USTR Declines to Overturn USITC's Section 337 Samsung Exclusion Order" TLJ Daily E-Mail Alert No. 2,611, October 9, 2013.

This pair of actions, in the least, created the appearance of favoritism and protectionism.

Froman referenced the DOJ/USPTO policy statement regarding SEPS subject to FRAND commitments. And, the DOJ in its just issued release referenced that policy statement. However, Froman's August determination made no attempt to apply the principles of that DOJ/USPTO policy statement to the facts of that proceeding. He did not base his determination upon a finding that Samsung asserted SEPs subject to FRAND commitments. Similarly, the DOJ's just issued release does not apply the policy statement to its just closed review.

The DOJ wrote that "a number of competitive issues arise when holders of SEPs seek to block their competitors from selling products that implement the SEPs. While there are certain circumstances where an exclusion order as a remedy for infringement of such patents could be appropriate, in many cases there is a risk that the patent holder could use the threat of an exclusion order to obtain licensing terms that are more onerous than would be justified by the value of the technology itself, effectively exploiting the market power obtained through the standards-setting process." But, the DOJ release merely offers this general statement, without reaching any conclusions as to Samsung.

The DOJ added that "readers should not draw overly broad conclusions regarding how the division is likely in the future to analyze other collaborations or activities, or transactions involving particular firms. Enforcement decisions are made on a case-by-case basis, and the analysis and conclusions discussed in this statement do not bind the division in any future enforcement actions."

This closing thus provides very little in the way of precedent or guidance to other companies.

Nor does it provide finality for Apple and Samsung. The European Commission (EC) is still conducting a parallel and redundant review of the same conduct.

2/5. Joaquín Almunia, the European Commission's (EC) VP for Competition Policy" gave a speech in Brussels, Belgium in which he discussed the EC's long running investigation of Google's search related business practices.

He stated that "I believe that Google's new proposals are capable of addressing the competition concerns I set out to them. Therefore, from now on we will move forward towards a decision based on commitments."

The U.S. Federal Trade Commission (FTC) concluded its own investigation of Google's patent and search practices in January of 2013. It announced then that it decided "to close the portion of its investigation relating to allegations that Google unfairly preferences its own content on the Google search results page and selectively demotes its competitors’ content from those results".

The FTC's search statement noted that complaining entities alleged that Google "unfairly promoted its own vertical properties through changes in its search results page" and "manipulated its search algorithms in order to demote vertical websites that competed against Google’s own vertical properties."

The FTC concluded in 2013 that "the evidence presented at this time does not support the allegation that Google’s display of its own vertical content at or near the top of its search results page was a product design change undertaken without a legitimate business justification. Rather, we conclude that Google’s display of its own content could plausibly be viewed as an improvement in the overall quality of Google’s search product. Similarly, we have not found sufficient evidence that Google manipulates its search algorithms to unfairly disadvantage vertical websites that compete with Google-owned vertical properties. Although at points in time various vertical websites have experienced demotions, we find that this was a consequence of algorithm changes that also could plausibly be viewed as an improvement in the overall quality of Google’s search results."

See, story titled "FTC Concludes Its Investigation of Google" in TLJ Daily E-Mail Alert No. 2,504, January 7, 2012.

Last week, Alumnia (at right) explained that "The latest round of negotiations over the last weeks focused on how Google would ensure that rival specialised search services can fairly compete with Google's services. Our concern was that, given the favourable treatment of Google's own services on its page, competitors' results which are potentially as relevant to the user as Google's own services -- or even more relevant -- could be significantly less visible or not directly visible, leading to an undue diversion of internet traffic."

He elaborated that "it is essential that the presentation of rival links is comparable to that of the Google services", "comparability of presentation of rival links has to be ensured dynamically over time", and "any commitments must retain their relevance throughout their lifetime".

He then stated that "Google has finally accepted to guarantee that whenever it promotes its own specialised search services on its page, the services of rivals will also be displayed in a comparable way. In practice, this means that when Google promotes one of its own specialised search services, there will be three rival services also displayed prominently on the page, in a way that is clearly visible to users."

Thomas Vinje of Fair Search, a group that advocates action by antitrust regulators against Google, stated in a release that this is "worse than doing nothing". He stated that "our concern is that the proposed commitments lock in discrimination and raise rivals' costs instead of solving the problem of Google’s anti-competitive practices".

In addition, on February 6, John Simpson of the Consumer Watchdog, a group that has often criticized Google's business practices, sent a letter to EC President Jose Manuel Barroso "to express our deepest concerns". He argued that, "At a minimum any remedy must insist that Google use an objective, nondiscriminatory mechanism to rank and display all search results -- including links to Google products."

He asserted that "The heart of the problem is simple. Google has developed a substantial conflict of interest. It no longer has an incentive to steer users to other sites, but rather primarily to its own services. It is becoming even more effective at this and has a greater incentive to engage in manipulation now that it is merging data collected across all its services. The only way to deal with this conflict is to remove it. Ideally, there needs to be a separation of Google’s different services and assets. At a minimum any remedy must insist that Google use an objective, nondiscriminatory mechanism to rank and display all search results -- including links to Google products."

2/3. Rep. Henry Waxman (D-CA) and other Democrats introduced HR 3982 [LOC | WW],, the "the Open Internet Preservation Act". This short and simple bill would reinstate the Federal Communications Commission's (FCC) Report and Order (R&O) [194 pages in PDF] vacated and remanded by the U.S. Court of Appeals (DCCir) in its January 14, 2014 opinion in Verizon v. FCC.

The FCC adopted this R&O on December 21, 2010, and released the text on December 23, 2010. It 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.

The R&O contains rules that regulate the business practices of broadband internet access service (BIAS) providers. These rules are also sometimes referred to as open internet rules or network neutrality rules.

The bill states that this R&O "shall be restored to effect during the period beginning on the date of the enactment of this Act and ending on the date when the Commission takes final action in the proceedings remanded to the Commission in that decision."

Rep. Waxman stated in a release that "Our bill very simply ensures that consumers can continue to access the content and applications of their choosing online. The FCC can and must quickly exercise the authorities the D.C. Circuit recognized to reinstate the Open Internet rules. Our bill makes clear that consumers and innovators will be protected in the interim."

Cathy Sloan of the Computer and Communications Industry Association (CCIA) stated in a release that "As the FCC works diligently to craft new safeguards against content blocking and commercial discrimination that could jeopardize anyone’s open Internet access in the wake of the Verizon court decision, consumers and online businesses will be pleased to know that so many leaders in Congress have their back."

Christopher Lewis of the Public Knowledge (PK) stated in a release that "The decision by the DC Circuit Court left a great deal of uncertainty for the Internet economy. The bill ensures that consumers and businesses are protected during this period of uncertainty between the Court's decision and the FCC's action in response to the court's remand. It is critical that the FCC acts quickly in response to the DC Circuit Court to protect an open Internet as we have always known it. They have clear authority to act and this bill provides protection for consumers while they deliberate."

This bill was referred to the House Commerce Committee (HCC).

The bill has no Republican cosponsors.

Since 2005, when serious consideration of this issue began in the Congress, proponents of open internet legislation have lacked sufficient votes for passage in the full House, the HCC, or its Subcommittee on Communications and Technology. Rep. Waxman has introduced this bill for purposes other than enactment into law.

Sen. Ed Markey (D-MA) introduced the companion bill in the Senate, S 1981 [LOC | WW]. That bill has no Republican cosponsors. It was referred to the Senate Commerce Committee (SCC).

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. The House will consider non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM.

5:00 PM. The House Intelligence Committee (HIC) will hold an executive business meeting. See, notice. Location: Room HVC-304, Capitol Visitor Center.

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

10:00 AM. The House Financial Services Committee will hold a hearing titled "Monetary Policy and the State of the Economy". The witness will be Janet Yellen (Chairman of the Federal Reserve Board), John Taylor (Stanford University), Mark Calabria (Cato Institute), Abby McCloskey (American Enterprise Institute), Donald Kohn (Brookings Institution). See, notice. Location: Room 2128, Rayburn Building.

POSTPONED. 10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Lessons Learned from the Broadband Stimulus". See, notice. Location: Room 2123, Rayburn Building.

12:15 - 5:00 PM. The New America Foundation (NAF) will host a panel discussion titled "Cryptocurrencies: The New Coin of the Realm?" Free. Open to the public. Lunch will be served. See, notice. Location: NAF, Suite 400, 1899 L St., NW.

1:00 PM. The House Small Business Committee (HSBC) will hold a hearing titled "Building on the Wireless Revolution: Opportunities and Barriers for Small Firms". The witnesses will be Michael Feldman (BigBelly Solar), Brian Marshall (Missouri Farm Bureau Federation and National Farm Bureau Federation), Leo McCloskey (Intelligent Transportation Society of America), and Darrell West (Brookings Institution). See, notice. Location: Room 2360, Rayburn building.

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

3:00 - 5:00 PM. The Brookings Institution (BI) will host an event titled "TPP and RCEP: Competing or Complementary Models of Economic Integration?". The US is a party to Trans Pacific Partnership (TPP) negotiations, but not Regional Comprehensive Economic Partnership (RCEP) negotiations. The speakers will include Kenichiro Sasae (Japan's ambassador to the US). Japan is a party to both TPP and RCEP. See, notice. Location: BI, 1775 Massachusetts Ave., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

9:00 - 10:30 AM. The Information Technology & Innovation Foundation (ITIF) will host a panel discussion titled "The Value of Brands and Reputation in the Global Marketplace". The speakers will include Robert Atkinson (ITIF), Carsten Fink (WIPO), and Sanal Mazvancheryl (American University). Free. Open to the public. See, notice. Location: ITIF/ITIC, Room 610A, 1101 K St., NW.

9:00 AM - 1:00 PM. The Center for Strategic and International Studies (CSIS) will host an event titled "U.S.-Japan Development Summit". See, notice. Location: CSIS, 1616 Rhode Island Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "The Report of the Privacy and Civil Liberties Oversight Board on Reforms to the Section 215 Telephone Records Program and the Foreign Intelligence Surveillance Court". The witnesses will be David Medine, Patricia Wald, Rachel Brand, James Dempsey, and Elisebeth Cook. Webcast. See, notice. Location: Room 226, Dirksen Building.

12:15 - 1:30 PM. The DC Bar Association's Media Law Committee will host an event titled "Media Law Committee Brown Bag Lunch Series". The speakers will be Jim McLaughlin (Washington Post) and Ashley Messenger (NPR). Free. No CLE credits. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. See, notice. Location: Washington Post, 1150 17th St., NW.

Rep. Cantor's schedule states that "no votes are expected in the House".

8:00 AM - 6:00 PM. The George Mason University law school's Law and Economics Center (LEC) will host an event titled "100 Years of Competition Policy at the FTC" and "17th Annual Law Review Symposium on Antitrust Law". See, notice. For more information, call Jeff Smith at jsmithq at gmu dot edu or 703-993-8382. Location: GMU law school, 3301 Fairfax Drive, Arlington, VA.

10:30 AM - 12:30 PM. The Senate Banking Committee (SBC) will hold a hearing on the Federal Reserve Board's (FRB) "Semiannual Monetary Policy Report to the Congress". The witness will be Janet Yellen (Chairman of the FRB). See, notice. Location: Room 538, Dirksen Building.

9:30 AM. The U.S. International Trade Commission (USITC) will hold a public hearing regarding preparation of a report for Congressional committees regarding India's industrial policies that create barriers to U.S. imports and investment. See, notice in the Federal Register, Vol. 78, No. 172, September 5, 2013, at Pages 54677-54678. This proceeding is Investigation No. 332-543. Location: USITC, 500 E St., SW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 149, the "STOP Identity Theft Act of 2013". Webcast. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a hearing on the nomination of John Carlin to be Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division. Open to the public. See, notice. Location: Room 219, Hart Building.

Rep. Cantor's schedule states that "no votes are expected in the House".

Washington's Birthday. This is a federal holiday. See, Office of Personnel Management's (OPM) 2014 calendar of federal holidays.

The House will not meet the week of February 17-21. See, 2014 House calendar.

1/30. Rep. Henry Waxman (D-CA), the ranking Democrat on the House Commerce Committee (HCC), announced that he will not run for re-election later this year.

Rep. Waxman (at right) was first elected with a large number of other Democrats in the 1974 post Watergate election. He became Chairman of the HCC at the beginning the 111th Congress in 2009 by successfully challenging the more senior Rep. John Dingell (D-MI).

Most of his legislative efforts have not involved information or communications technologies. However, he boasted in a release that "Last Congress, I worked with Democrats and Republicans in the House and Senate to pass legislation that will ease the nation's growing spectrum shortage, spur innovation in new 'Super WiFi' technologies, and create a national broadband network for first responders."

That spectrum bill was enacted in the 112th Congress as part of HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012".

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