Tech Law Journal Daily E-Mail Alert
Monday, April 7, 2014, Alert No. 2,638.
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Patent Legislation Update

4/3. The Senate Judiciary Committee (SJC) held executive business meetings on March 27 and April 3, 2014, at which it discussed, but held over, consideration of S 1720 [LOC | WW], the "Patent Transparency and Improvements Act of 2013". This bill is again on the agenda for the SJC's meeting scheduled for Thursday, April 10. See, notice.

The Senate Commerce Committee (SCC) has scheduled a mark up session for April 9, 2014. However, the agenda does not include S 2049 [LOC | WW | TLJ], the "Transparency in Assertion of Patents Act", a patent bill over which the SCC has jurisdiction. See also, story titled "Sen. McCaskill Introduces Bill to Regulate Patent Infringement Demand Letters" in TLJ Daily E-Mail Alert No. 2,632, February 27, 2014.

Sen. Patrick Leahy (D-VT), Sen. Mike Lee (R-UT), Sen. Sheldon Whitehouse (D-RI) and Sen. Amy Klobuchar (D-MN) introduced S 1720 on November 18, 2013.

S 1720 would require disclosures regarding patent ownership, and financial interests in patents, both at the filing of a lawsuit by a patent owner for patent infringement, and to the U.S. Patent and Trademark Office (USPTO).

For example, it would require disclosure to the USPTO within three months of any assignment of all substantial rights in an issued patent that results in a change to the ultimate parent entity.

This bill would also provide for a stay in certain patent litigation of that portion of the action directed at customers who purchased allegedly infringing products when the manufacturer is also a party, and the "customer agrees to be bound under the principles of collateral estoppel by any issues finally decided as to the covered manufacturer".

The bill also contains an awkwardly worded section that would amend the Patent Act to govern Section 5 of the Federal Trade Commission Act (15 U.S.C. 45). It would provide that certain bad faith demand letter practices constitute unfair or deceptive trade practices within the meaning of the FTC Act.

This bill does not contain a fee shifting provision, which is central to the bill passed by the House in December, HR 3309 [LOC | WW], the "Innovation Act".

S 1720 would also require that the USPTO conduct a study on the "patent secondary market". The purpose of this study would be "to examine licensing and other oversight requirements that may be placed on the patent secondary market, including on the participants in such markets, to ensure that the market is a level playing field and that brokers in the market have the requisite expertise and adhere to ethical business practices".

It would also address prior art in cases of double patenting, intellectual property licenses in bankruptcy proceedings, and post grant review procedures.

Representatives Introduce Resolution Advocating International Internet Freedom

4/1. Rep. Anna Eshoo (D-CA) and others introduced HRes 532, a resolution that "calls on the Government of Turkey to lift restrictions on freedom of the press, freedom of expression, and Internet freedom, including social media".

This resolution states that "the Government of Turkey imposed a countrywide ban on access to Twitter on March 20, 2014, and to YouTube on March 27, 2014, blocking the use of the communications platforms". It adds that Twitter and YouTube have also been blocked in the People's Republic of China.

This resolution argues that "an independent, unfettered media and freedom of expression, including the Internet and social media, are essential elements of democratic, transparent, and open societies". It also "reaffirms the importance of Internet freedom to promote democracy and good governance around the world".

Rep. Anna EshooRep. Eshoo (at right) stated in a release that "Freedom of expression and freedom of the press are foundational pillars to any functioning democracy ... Social media, such as Twitter and YouTube, has enhanced these pillars serving as transformational instruments for social policy change to billions of people who use them on a daily basis. By introducing this resolution, we stand united against actions that restrict Internet freedom in Turkey and around the world."

The resolution was referred to the House Foreign Affairs Committee (HFAC).

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "Internet censorship clearly violates human rights and free speech, but we believe government blocking of Internet sites like this could also interfere with Turkey's obligations in international trade agreements. We commend Congresswoman Eshoo and her colleagues for taking a strong stand for the citizens of Turkey and open access to the Internet."

The Center for Democracy and Technology (CDT) wrote in a March 27 statement that "Blocking an entire platform for individuals' speech is a massively overbroad response to concerns over potentially illegal content. Issuing such a block expressly to silence political criticism is censorship of the most obvious kind."

Rep. Eshoo is scheduled to speak at a conference on Wednesday, April 9, hosted by the CCIA, at the Newseum, in Washington DC.

Commentary: Brendan Eich and Internet Freedom

4/3. Mozilla announced in a release that its newly appointed Chief Executive Officer (CEO), Brendan Eich, "has chosen to step down from his role as CEO".

OkCupid, an online dating web site, had stated in its web site that "Mozilla's new CEO, Brendan Eich, is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid."

Eich donated money to a political campaign in support of California Proposition 8. Voters of the state of California passed the initiative by a vote of 7,001,084 to 6,401,482 in 2008.

It states in full as follows:

    Section I. Title
    This measure shall be known and may be cited as the "California Marriage Protection Act."
    Section 2. Article I. Section 7.5 is added to the California Constitution, to read:
    Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

Mozilla did not act neutrally. It did not announce the resignation of any of the Mozilla employees who donated money in opposition to the Proposition. Moreover, Mozilla added in its release that "people are hurt and angry, and they are right".

The Electronic Frontier Foundation (EFF) noted in a release that Mozilla has been active in many other political contests, including "the fight against SOPA/PIPA, the StopWatching.US Coalition against mass surveillance, the effort to Encrypt the Web, the battle to prevent non-consensual online tracking, and ongoing work to make Firefox a more secure browser".

US internet companies are vulnerable to actions taken by foreign governments directed at censoring or punishing speech or political participation.

Moreover, some governments apply censorship regimes more rigidly against US owned internet companies than domestic companies, for protectionist purposes. See for example, story titled "CCIA Describes PRC's Internet Censorship as Trade Protectionism" in TLJ Daily E-Mail Alert No. 2,180, December 16, 2010.

US internet companies, trade groups, and government trade negotiators argue against such actions, citing the sacrosanct importance of freedom of expression and political participation.

The recent retaliatory actions against Brendan Eich by US internet companies undermine the credibility of such arguments.

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In This Issue
This issue contains the following items:
  Patent Legislation Update
  Representatives Introduce Resolution Advocating International Internet Freedom
  Commentary: Brendan Eich and Internet Freedom
Washington Tech Calendar
New items are highlighted in red.
Monday, April 7

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. The House will consider several items under suspension of the rules, including HR 3470 [LOC | WW], the "Taiwan Relations Act Affirmation and Naval Vessel Transfer Act of 2014". Votes will be postponed until 6:30 PM. See, Rep. Cantor's schedule for the week.

The Senate will meet at 2:00 PM.

9:00 AM - 4:00 PM. Day one of a two day partially closed meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). See, notice in the Federal Register, Vol. 79, No. 53, March 19, 2014, at Pages 15354-15355. Location: DHS, Room 8 ABC, 1120 Vermont Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding expansion of its e-rate tax and subsidy program. This PN is DA 14-308 in WC Docket No. 13-184. The FCC's Wireline Competition Bureau (WCB) released it on March 6, 2014. This 23 page PN, which is in the nature of a Further Notice of Proposed Rulemaking (FNPRM), seeks further comments in its proceeding initiated by the FCC's 2013 NPRM. That NPRM is FCC 13-100. See, notice in the Federal Register, Vol. 79, No. 47, March 11, 2014, at Pages 13599-13607.

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to the petition for reconsideration of the FCC's Report and Order regarding reliability and resiliency of 911 networks filed by Intrado, Inc. on February 18, 2014. The FCC adopted and released its order on December 12, 2013. It is FCC 13-158 in PS Docket Nos. 13-75 and 11-60. See, notice in the Federal Register, Vol. 79, No. 48, March 12, 2014, at Pages 13975-13976.

Tuesday, April 8

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

The Senate will meet at 10:00 AM.

9:00 AM - 4:00 PM. Day two of a two day partially closed meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). The agenda for April 8 includes a discussion of the DHS Science and Technology Directorate's (STD) Cyber Security Division (CSD). See, notice in the Federal Register, Vol. 79, No. 53, March 19, 2014, at Pages 15354-15355. Location: DHS, Room 8 ABC, 1120 Vermont Ave., NW.

9:00 AM - 5:00 PM. Day one of a two day joint meeting of the Federal Aviation Administration's (FAA) Radio Technical Commission for Aeronautics' (RTCA) Special Committee 216, Aeronautical Systems Security, and EUROCAE WG-72. See, notice in the Federal Register, Vol. 79, No. 56, March 24, 2014, at Pages 16094-16095. Location: RTCA, Suite 910, 1150 18th St., NW.

9:30 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONC/HIT) HIT Policy Committee will meet. See, DHHS notice and notice in the Federal Register, Vol. 78, No. 243, December 18, 2013, at Page 76627. Location: __.

10:00 AM. The House Commerce's Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade will hold a hearing titled "Trolling for a Solution: Ending Abusive Patent Demand Letters". The witnesses will be Rheo Brouillard (American Bankers Association), Mark Chandler (Cisco Systems), Michael Dixon (UNeMed Corporation), Jason Schultz (New York University School of Law), Dennis Skarvan (Coalition for 21st Century Patent Reform), and William Sorrell (Attorney General of the state of Vermont). See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Oversight of the Department of Justice". The witness will be Attorney General Eric Holder. See, notice. Location: Room 2141, Rayburn Building.

POSTPONED. 11:00 AM. The House Appropriations Committee (HAC) will hold a closed hearing titled "Cybersecurity". The witnesses will be Suzanne Spaulding, Phyllis Schneck, and Larry Zelvin (all of the DHS's National Protection and Programs Directorate). See, notice. Location: Room HVC-301, Capitol Visitor Center.

1:00 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will host one of its series of meetings regarding privacy and facial recognition technology. See, notice in the Federal Register, Vol. 78, No. 235, December 6, 2013, at Pages 73502-73503. Location: American Institute of Architects, 1735 New York Ave., NW.

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

Wednesday, April 9

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

8:00 AM - 5:00 PM. The Computer and Communications Industry Association (CCIA) will host an event titled "2014 Washington DC Conference". The speakers will include Sen. John Cornyn (R-TX), Rep. Anna Eshoo (D-CA), Rep. Doris Matsui (D-CA), Rep. Zoe Lofgren (D-CA), Rep. Jared Polis (D-CA), Larry Strickling (head of the NTIA), Julie Brill (FTC Commissioner), Meredith Broadbent (USITC Commissioner), Suzanne Spaulding (DHS NPPD), and others. See, notice. For more information, contact Maggie Clark Brennan at 202-783-0070 ext. 120 or mclark at ccianet dot org. Location: Newseum, 7th floor, Knight Conference Center, 555 Pennsylvania Ave., NW.

9:00 AM - 3:00 PM. Day two of a two day joint meeting of the Federal Aviation Administration's (FAA) Radio Technical Commission for Aeronautics' (RTCA) Special Committee 216, Aeronautical Systems Security, and EUROCAE WG-72. See, notice in the Federal Register, Vol. 79, No. 56, March 24, 2014, at Pages 16094-16095. Location: RTCA, Suite 910, 1150 18th St., NW.

10:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Capital Markets and Government Sponsored Enterprises will hold a hearing titled "Legislative Proposals to Enhance Capital Formation for Small and Emerging Growth Companies". The witnesses will be David Burton (Heritage Foundation), John Coffee (Columbia University law school), Brian Hahn (Biotechnology Industry Organization), and Tom Quaadman (U.S. Chamber of Commerce). See, notice. Location: Room 2128, Rayburn Building.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Research and Technology will hold a hearing titled "Prizes to Spur Innovation and Technology Breakthroughs". The witnesses will be Christopher Frangione (XPRIZE), Donnie Wilson (Elastec American Marine), Narinder Singh (TopCoder), and Sharon Moe (American Society of Nephrology). See, notice. Location:
Room 2318, Rayburn Building.

RESCHEDULED FROM APRIL 2. LOCATION CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Examining the Comcast-Time Warner Cable Merger and the Impact on Consumers". The witnesses will be David Cohen (Comcast), Arthur Minson (Time Warner Cable), Gene Kimmelman (Public Knowledge), James Bosworth (Back9Network), Richard Sherwin (Spot On Networks), and Christopher Yoo (University of Pennsylvania law school). Webcast. See, notice. Location: Room 226, Dirksen Building. Room 216, Hart Building.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, Science, and Related Agencies will hold a hearing on the FY 2015 budget for the Department of Commerce. The witness will be Penny Pritzger (Secretary of Commerce). See, notice. Location: Room H-309, Capitol Building.

2:30 PM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 1720 [LOC | WW], the "Patent Transparency and Improvements Act of 2013". Webcast. See, notice. Location: Room 106, Dirksen Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold an executive business meeting. The agenda includes mark up of 15 bills and consideration of nominations. The agenda includes S 1379 [LOC | WW], the "Federal Communications Commission Consolidated Reporting Act of 2013". However, it does not include any patent bills. Location: Room 253, Russell Building.

4:00 PM. The House Commerce's Committee's (HCC) Subcommittee on Communications and Technology will begin its mark up of HR 4342 [LOC | WW], the "Domain Openness Through Continued Oversight Matters Act of 2014", also known as the DOTCOM Act. This session will be for opening statements only. See, notice. Location: Room 2123, Rayburn Building.

5:30 PM. Deadline to submit to the U.S. China Economic and Security Review Commission (USCESRC) proposals for writing a research report to be titled "China's Civilian and Military Space Programs". See, Request for Proposals (RFP).

Thursday, April 10

The House will meet at 9:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule for the week.

9:00 AM. The House Commerce's Committee's (HCC) Subcommittee on Communications and Technology will complete its mark up of HR 4342 [LOC | WW], the "Domain Openness Through Continued Oversight Matters Act of 2014", also known as the DOTCOM Act. See, notice. Location: Room 2123, Rayburn Building.

9:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property, and the Internet will hold a hearing titled "Should the Department of Commerce Relinquish Direct Oversight Over ICANN?". The witnesses will be __. See, notice. Location: Room 2141, Rayburn Building.

9:00 AM. The House Science Committee (HSC) will hold a hearing titled "Department of Energy Science and Technology Priorities". The witness will be Ernest Moniz (Secretary of Energy). See, notice. Location: Room 2318, Rayburn Building.

9:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Visitor Center.

9:00 AM - 5:00 PM. Day one of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC). This meeting will be on site, teleconferenced, and webcast. See, notice in the Federal Register, Vol. 79, No. 42, March 4, 2014, at Pages 12209-12210. Location: 131 M St., NE.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Alpine PCS v. FCC, App. Ct. No. 13-5205, an appeal from the U.S. District Court (DC). See also, FCC brief filed on November 25, 2013. Judges Brown, Millett and Pillard will preside. This is the third item on the Court's agenda. Location: USCA Courtroom, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The House Appropriations Committee (HAC) will hold a closed hearing on the FY 2015 budget for various surveillance and intelligence related agencies. The witness will be James Clapper (Director of National Intelligence). See, notice. Location: Room H-405, Capitol Building.

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

Friday, April 11

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

9:00 AM - 5:00 PM. Day two of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC). This meeting will be on site, teleconferenced, and webcast. See, notice in the Federal Register, Vol. 79, No. 42, March 4, 2014, at Pages 12209-12210. Location: 131 M St., NE.

Deadline to submit to the U.S. International Trade Commission (USITC) all written statements regarding its 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.

Monday, April 14

Passover begins at sundown.

The House will not meet the week of April 14-18. See, 2014 House calendar.

5:00 PM. Deadline to submit comments to the Copyright Office (CO) regarding "Orphan Works and Mass Digitization". See, notice in the Federal Register, Vol. 79, No. 27, February 10, 2014, at Pages 7706-7711.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its collection of information incident to collection of fees for processing and other services related to patents, trademarks, and information products, via credit cards, deposit accounts, and its forthcoming MyFinancials system. See, notice in the Federal Register, Vol. 79, No. 29, February 12, 2014, at Pages 8439-8441.

Deadline to submit comments to the Department of Agriculture's Rural Utilities Service (RUS) in response to its proposal to amend the telecommunications standards and specifications for material, equipment and construction regulations by replacing Equipment Specific Contracts, RUS Forms 397, 398, 525, 545, and the associated documents (Forms 231, 396, 396a, 397b, 397c, 397d, 397f, 397g, 397h, 517, 525a, 744, 752a, 754, and addenda) with a new Equipment Contract, RUS Form 395 and the associated close-out documents (Forms 395a, 395b, 395c and 395d). See, notice in the Federal Register, Vol. 79, No. 29, February 12, 2014, at Pages 8327-8337.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the two Further Notice of Proposed Rulemakings (FNPRMs) contained in its huge item [114 pages in PDF] adopted on January 30, 2014, and released on January 31, regarding technology transitions in voice communications. This item is FCC 14-5 in GN Docket No. 13-5 and WC Docket Nos. 10-90 and 13-97. See, notice in the Federal Register, Vol. 79, No. 40, February 28, 2014, at Pages 11366-11373.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the "Proposal for Ongoing Data Initiative". See, Part V of the FCC's huge item [114 pages in PDF] adopted on January 30, 2014, and released on January 31, regarding technology transitions in voice communications. This item is FCC 14-5 in GN Docket No. 13-5 and WC Docket Nos. 10-90 and 13-97.