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Thursday, April 17, 2014, Alert No. 2,641.
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Senate Foreign Relations Committee Report Addresses TPP and Other Asia Trade Topics

4/17. The Senate Foreign Relations Committee (SFRC) Democrats released a staff report [33 pages in PDF] titled "Re-Balancing the Rebalance: Resourcing U.S. Diplomatic Strategy in the Asia-Pacific Region".

This report recommends, among other things, that the U.S. "aggressively pursue bilateral trade deals, including a Bilateral Investment Treaty (BIT) with China, alongside larger trade agreements such as the Trans-Pacific Partnership (TPP)."

It also recommends involving Taiwan, the Philippines, and Indonesia, and Taiwan in either the TPP or bilateral trade discussions.

It also recommends more funding and personnel for the Office of the U.S. Trade Representative (OUSTR).

It states that "The administration has made the TPP the principal focus of U.S. trade policy in the region and a cornerstone of the rebalance. The TPP aims to create a new high standard of rules-based trade in the region that is open to all members of APEC (and possibly all ASEAN members in the future)." (Parentheses in original.)

It continues that "Given the critical importance to U.S. interests of trade and economic engagement with the region, a high-standard TPP will be necessary to protect U.S. businesses from unfair business practices
and allow them to leverage their competitive advantages. The TPP offers them considerable opportunities, especially with the addition of new members like Japan and the prospect that Korea and other significant economies are seriously contemplating joining the next round. According to the USTR, as currently configured the TPP agreement would cover 37 percent of all U.S. exports and include foreign markets that support 4 million jobs in the United States. A completed and successfully implemented TPP deal could therefore be a boon for U.S. exporters and help the administration achieve its National Export Initiative (NEI) goals of doubling exports and supporting two million American jobs." (Footnote omitted.)

This report states that "While the USTR has a critically important and ever-expanding portfolio in the region, it currently lacks the funding and personnel to meet current demands, much less future challenges and opportunities. Beyond the TPP, USTR is also conducting Trade and Investment Framework Agreement (TIFA) consultations with Taiwan and Bilateral Investment Treaty negotiations with China and India, as well as expanded engagement with ASEAN. As these agreements come online, USTR will require more funding for personnel and travel to protect U.S. economic interests by ensuring proper implementation."

PRC Appeals WTO Rare Earths Ruling

4/17. The Wall Street Journal (WSJ) published an article on April 17, 2014 titled "China to Appeal WTO Rare-Earth Ruling". As of publication of this issue of TLJ, the World Trade Organization (WTO) had not yet published any Notification of an Appeal by the People's Republic of China (PRC) in its web site.

The US, EU and Japan filed complaints with the WTO in 2012 regarding the PRC policies with respect to rare earth materials, which are used in many technology products. These proceeding are WTO DS 431, DS 432, and DS 433, respectively.

On March 26, 2014, the WTO Dispute Settlement Body (DSB) released its panel reports [258 pages in PDF]. The WTO panel found that the PRC's export duties on rare earths are inconsistent with its accession protocol, and its export duties are inconsistent with the General Agreement on Tariffs and Trade 1994 (GATT 1994). The panel also faulted the PRC's restrictions on the trading rights of enterprises exporting rare earths.

See also, story titled "WTO Rules Rare Earths Case" in TLJ Daily E-Mail Alert No. 2,639, April 8, 2014, story titled "US, Japan and EU Request WTO DSP for REM Complaint Against PRC" in TLJ Daily E-Mail Alert No. 2,406, July 20, 2012, and stories titled "US, Japan and EU Take Rare Earths Issue to WTO" and "OUSTR Explains Rare Earths Request for Consultations" in TLJ Daily E-Mail Alert No. 2,349, March 14, 2012.

On April 8, 2014, the US filed with the WTO Appellate Body (AB) a Notification of an Appeal of the DSB ruling on the US complaint against the PRC. This notification states that "If China were not to appeal the Panel Report, or if the Appellate Body were not to modify or reverse the legal findings or conclusions of the Panel pursuant to an appeal by China, then the Appellate Body would not need to reach" the issues raised by this notification of an appeal. The issues raised by this notification go to the rejection of exhibits by the DSB offered by the US.

More Trade News

4/18. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register that announces that "For the purpose of U.S. Government procurement that is covered by Title III of the Trade Agreements Act of 1979, the effective date of the Protocol Amending the Agreement on Government Procurement, done at Geneva on 30 March 2012, World Trade Organization (WTO), with respect to Japan is April 16, 2014." See, FR, Vol. 79, No. 75, April 18, 2014, at Pages 21991-21992.

4/17. The U.S. International Trade Commission (USITC) published a notice of proposed rulemaking in the Federal Register (FR) that proposes to amend its Rules of Practice and Procedure with respect to classified information and mandatory declassification reviews. The deadline to submit comments is 5:15 PM on June 16, 2014. See, FR, Vol. 79, No. 74, April 17, 2014, at Pages 21658-21661.

4/9. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register (FR) announces, describes, recites, and requests comments on, its proposed rules changes regarding the support documents submitted for license applications under the BIS's Export Administration Regulations (EAR) and the BIS's role in issuing documents for the Import Certificate and Delivery Verification system. The deadline to submit comments is June 9, 2014. See, FR, Vol. 79, No. 68, April 9, 2014, at Pages 19552-19564.

3/19. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the effective date (March 19) for, its rules titled "Export Administration Regulations". The changes pertain only to statements of authority for these rules. These rules implement the Export Administration Act, which expired in 2001. The BIS regulates, among other things, the export of many IT products. See, FR, Vol. 79, No. 53, March 19, 2014, and Pages 15219-15220.

Senate Judiciary Committee Members Still Working on Patent Bill

4/8. The agendas for recent Senate Judiciary Committee (SJC) executive business meetings have listed S 1720 [LOC | WW], the "Patent Transparency and Improvements Act of 2013". However, the SJC has held over consideration of the bill.

Sen. Charles GrassleySen. Charles Grassley (R-IA), the ranking Republican on the SJC, stated in a release on April 8 that SJC "members are working in good faith to reach an agreement that addresses concerns from the many sides of the issues. We're not there yet. Sometimes, it takes more time than we'd like, but, the end result is a better product. I'm willing to sacrifice a little time to develop a bipartisan bill that we all can support."

The Senate is in recess until Monday, April 28, 2014. The SJC has not yet released an agenda for its next executive business meeting, which may be held on Thursday, May 1, 2014.

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

Meanwhile, the Senate Commerce Committee (SCC) has not yet marked up the patent bill within its jurisdiction, S 2049 [LOC | WW | TLJ], the "Transparency in Assertion of Patents Act".  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.

The House passed a major patent bill in December of 2013, HR 3309 [LOC | WW], the "Innovation Act". It contains a fee shifting provision. No Senate Committee has taken any action on that bill.

DOJ and FTC Release Policy Statement on Sharing of Cyber Threat Information

4/10. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) released a joint statement [9 pages in PDF] titled "Antitrust Policy Statement on Sharing of Cybersecurity Information".

It does not state that the sharing of cyber threat information does not violate antitrust laws. Rather, it offers an "analytical framework".

This statement focuses on agreements to share information, and not agreements not to share information. However, it does suggest in just one sentence "not sharing such information as part of a conspiracy" could harm competition and therefore violate antitrust laws.

The Antitrust Division issued a business review letter (BRL) back in 2000 on this topic. The just released statement states that that BRL "remains the Agencies' current analysis".

William Baer Bill Baer (at right), the Assistant Attorney General in charge of the Antitrust Division, stated in a release that "With proper safeguards in place, cyber threat information sharing can occur without posing competitive concerns."

Baer wrote in a separate statement that "as long as companies don't discuss competitive information such as pricing and output when sharing cybersecurity information, they're okay."

This document states that "One way that private entities may defend against cyber attacks is by sharing technical cyber threat information -- such as threat signatures, indicators, and alerts -- with each other. Today, much of this sharing is taking place. Some private entities may, however, be hesitant to share cyber threat information with others, especially competitors, because they believe such sharing may raise antitrust issues."

It states that agreements for cyber threat information sharing "increase the security, availability, integrity, and efficiency of our information systems. This, in turn, leads to a more secure and productive nation."

And, "While it is true that certain information sharing agreements among competitors can raise competitive concerns, sharing of the cyber threat information ... is highly unlikely to lead to a reduction in competition and, consequently, would not be likely to raise antitrust concerns."

The DOJ and FTC wrote that "the sharing of competitively sensitive information -- such as recent, current, and future prices, cost data, or output levels -- may facilitate price or other competitive coordination among competitors".

They also wrote that they "will typically examine information sharing agreements under a rule of reason analysis, which considers the overall competitive effect of an agreement".

This statement does not elaborate on what types of information sharing agreements involving cyber security might harm competition.

This statement only addresses information sharing between between businesses, and does not address the many disincentives to such information sharing, other than federal antitrust laws.

James ColeDeputy Attorney General James Cole (at right) wrote in another statement about two other types of information sharing that will not be affected by the just released joint policy statement. He discussed "the need for government to share information with the private sector", and the need for businesses "to share with the government".

The House has passed a bill in April of 2013 that is broadly directed at promoting the sharing of cyber threat information. It is HR 624 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act". The Senate has not passed it, and President Obama opposes it.

More Antitrust News

4/9. The Senate Judiciary Committee (SJC) held a hearing titled "Examining the Comcast-Time Warner Cable Merger and the Impact on Consumers". See, opening statement of Sen. Patrick Leahy (D-VT) and opening statement of Sen. Charles Grassley (R-IA). See also, prepared testimony of David Cohen (Comcast) and Arthur Minson (Time Warner Cable), prepared testimony of Gene Kimmelman (Public Knowledge), prepared testimony of James Bosworth (Back9Network), prepared testimony of Richard Sherwin (Spot On Networks), and prepared testimony of Christopher Yoo (University of Pennsylvania law school). The House Judiciary Committee (HJC) has scheduled a related hearing for May 8, 2014.

4/8. Comcast and Time Warner Cable filed with the Federal Communications Commission (FCC) a application [181 pages in PDF, redacted] for approval of their proposed merger.

3/11. The Federal Trade Commission (FTC) published a notice in the Federal Register (FR) that announces, describes, recites, and set the effective date for, its changes to its rules to increase various civil monetary penalties for violation of the Clayton Act, Section 5 of the FTC Act, and other statutes enforced by the FTC. The FTC's FR notice states that it is "increasing certain civil penalty amounts" to "reflect inflation since the penalty amounts were last adjusted". These rules changes take effect on April 10, 2014. See, FR, Vol. 79, No. 47, March 11, 2014, at Pages 13539-13540.

In This Issue
This issue contains the following items:
  Senate Foreign Relations Committee Report Addresses TPP and Other Asia Trade Topics
  PRC Appeals WTO Rare Earths Ruling
  More Trade News
  Senate Judiciary Committee Members Still Working on Patent Bill
  DOJ and FTC Release Policy Statement on Sharing of Cyber Threat Information
  More Antitrust News
Washington Tech Calendar
New items are highlighted in red.
Friday, April 18

The House will not meet the weeks of April 14-18 or April 21-25. It will next meet at 2:00 PM on Monday, April 28. See, 2014 House calendar, and SConRes 35.

The Senate will not meet. It will next meet at 2:00 PM on April 28.

Good Friday.

Supreme Court conference day. See, October Term 2013 calendar.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft NIST IR 7977 [14 pages in PDF] titled "NIST Cryptographic Standards and Guidelines Development Process".

Sunday, April 20

Easter.

Monday, April 21

The House will not meet the week of April 21-25. It will next meet at 2:00 PM on Monday, April 28. See, 2014 House calendar, and SConRes 35.

The Senate will not meet the week of April 21-25. It will next meet at 2:00 PM on Monday, April 28. See, SConRes 35.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) requesting public comments to assist it in preparing its 16th report on the status of competition in the market for the delivery of video programming. This NOI is FCC 14-8 in MB Docket No. 14-16. The FCC adopted this NOI on January 30, 2014, and released the text on January 31, 2014. See also, notice in the Federal Register, Vol. 79, No. 29, February 12, 2014, at Pages 8452-8457.

Deadline to submit nominations for membership on the Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC). See, notice in the Federal Register, Vol. 79, No. 41, March 3, 2014, at Page 11877.

Deadline to submit reply 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 comments to the Federal Trade Commission (FTC) regarding the proposed guidelines [56 pages in PDF] submitted pursuant to the safe harbor provision of the Children's Online Privacy Protection Act (COPPA), and FTC rules thereunder, by the Internet Keep Safe Coalition, which is also named iKeepSafe. See, FTC notice in the Federal Register, Vol. 79, No. 53, March 19, 2014, at Pages 15271-15272. See also, FTC notice in its web site. See also, story titled "FTC Seeks Comments on Proposed COPPA Safe Harbor" in TLJ Daily E-Mail Alert No. 2,634, March 19, 2014.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-157 [29 pages in PDF] titled "Guidelines for Derived Personal Identity Verification (PIV) Credentials".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 7981 [14 pages in PDF] titled "Mobile, PIV, and Authentication".

Tuesday, April 22

Passover ends at sundown.

1:00 - 4:00 PM. 22 1:00 - 4:00 PM. The Federal Communications Commission (FCC) will host a webcast and telecast event titled "Webinar for State and Local Governments". There will be presentations titled "Modernizing the E-rate Program", "IP Transition Update", "Open Internet Rules", "Wireless Infrastructure Issues", "Facilities Siting Rulemaking", "Positive Train Control Historic Preservation Review", "FCC Speed Test App -- Measuring Broadband America", "Next Generation 911", and "Closed Captioning". For the telecast, call 1-888-858-2144. The Access Code is 8926297. See, notice.

Wednesday, April 23

8:30 AM - 2:00 PM. The U.S. Chamber of Commerce's (USCC) Global Intellectual Property Center (GIPC) will host an event titled "2nd Annual IP Champions Conference". The speakers will include Rep. Doug Collins (R-GA), David Hirschmann (head of the GIPC), Mark Crowell (University of Virginia), Anastasia Danias (National Football League), Alun Jones (United Nations Office of Drugs and Crime), David Lowery (University of Georgia), and Miriam Vogel (Department of Justice). Location: USCC, 1615 H St., NW.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". The agenda includes a huge universal service item and an NPRM regarding spectrum sharing in the 3550-3650 MHz band. Webcast. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

5:30 - 7:00 PM. The Institute for Policy Innovation (IPI) will host a reception in advance of its April 24 event titled "9th Annual World Intellectual Property Day Forum". The speaker will be Frances Gurry, Director of the World Intellectual Property Organization (WIPO). Free. Open to the public. See, notice. Location: Room 121, Cannon Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding extension of the freeze of jurisdictional separations category relationships and cost allocation factors for three years, through June 30, 2017. The FCC adopted this FNPRM on March 26, 2014, and released it on March 27. It is FCC 14-27 in CC Docket No. 80-286. See, notice in the Federal Register, Vol. 79, No. 63, April 2, 2014, at Pages 18498-18503.

Deadline to submit requests to make presentations at President's Council of Advisors on Science and Technology's (PCAST) April 30 public conference call on the PCAST's big data and privacy report. See, notice in the Federal Register, Vol. 79, No. 73, April 16, 2014, at Pages 21453-21454.

Thursday, April 24

8:15 AM - 1:00 PM. The Federal Communications Bar Association (FCBA) and the American Bankruptcy Institute (ABI) will host an event titled "FCC/Bankruptcy Mini Conference: The Intersection of the FCC and Bankruptcy Law". The price to attend is $125. CLE credits. See, notice. (The ABI is holding its annual meeting on April 24-27.) Location: JW Marriot, 1331 Pennsylvania Ave., NW.

9:00 AM - 1:00 PM. The Institute for Policy Innovation (IPI) will host an event titled "9th Annual World Intellectual Property Day Forum". The speakers will include Geoffrey Manne (International Center for Law and Economics), Sandra Aistars (Copyright Alliance), Grant Aldonas (Center for Strategic & International Studies), Joe Damond (Biotech Industry Organization), Dana Colarulli (USPTO), and Stevan Mitchell (Globalview Strategies). Free. Open to the public. Lunch wil be served. See, notice. Location: Reserve Officers Association, One Constitution Ave., NE.

9:00 AM - 12:30 PM. The Brookings Institution (BI) will host an event titled "How China's Youth are Transforming Chinese Society: New Research Findings from the PRC". See, notice. Location: BI, 1775 Massachusetts Ave., 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 Standards Committee will meet. See, notice in the Federal Register, Vol. 78, No. 243, December 18, 2013, at Page 76627-76628.

2:00 - 3:30 PM. The Heritage Foundation (HF) will host a panel discussion titled "Protecting American Interests in the South China Sea". The speakers will be Ely Ratner (Center for a New American Security), Steven Groves (HF), Dean Cheng (HF), Jonathan Odom (U.S. Navy), and Walter Lohman (HF). Free. Open to the public. Webcast. See, notice. Location: HF, 214 Massachusetts Ave., NE.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Lindsey Tonsager at ltonsager at cov dot com or Justin Faulb at jfaulb at nab dot org. Location: Co Co Sala, 929 F St., NW.

Friday, April 25

Supreme Court conference day. See, October Term 2013 calendar.

9:00 AM - 1:15 PM. The U.S. China Economic Security and Review Commission (USCESRC) will hold a hearing. This is one of a series of hearings to assist the USCESRC in preparing its 2014 report to the Congress. This hearing is titled "U.S.-China Clean Energy Cooperation: Status, Challenges, and Opportunities". See, notice in the Federal Register, Vol. 79, No. 73, April 16, 2014, at Pages 21516-21517. Location: Room 608, Dirksen Building.

9:00 AM - 5:00 PM. The Federal Aviation Administration's (FAA) Radio Technical Commission for Aeronautics' (RTCA) Special Committee 222, Inmarsat AMS(R)S, will meet. See, notice in the Federal Register, Vol. 79, No. 68, April 9, 2014, at Page 19706. Location: RTCA, Suite 910, 1150 18th St., NW.

10:30 AM - 12:00 NOON. The Heritage Foundation (HF) will host a panel discussion titled "U.S.-Japan Cooperation in Southeast Asia". The speakers will be Shigeo Yamada (Embassy of Japan), Satu Limaye (East-West Center in Washington), Yuki Tatsumi (Stimson Center), and Walter Lohman (HF). Free. Open to the public. Webcast. See, notice. Location: HF, 214 Massachusetts Ave., NE.

12:00 NOON - 1:15 PM. The Internet Caucus will host a panel discussion titled "Revising The Electronic Communications Privacy Act (ECPA): Should Congress Require a Warrant?". The speakers will include James Dempsey ( Privacy and Civil Liberties Oversight Board, and Center for Democracy & Technology), Richard Downing (DOJ's Computer Crime and Intellectual Property Section), and Katie McAuliffe (Americans for Tax Reform). Box lunches will be served. Location: Room 2226, Rayburn Building.

Deadline to submit requests to speak at the U.S. Patent and Trademark Office's (USPTO) May 9, 2014 hearing on its memorandum titled "Guidance For Determining Subject Matter Eligibility of Claims Reciting or Involving Laws of Nature, Natural Phenomena, and Natural Products (Laws of Nature/Natural Products Guidance)'', released on March 4, 2014. See, notice in the Federal Register, Vol. 79, No. 74, April 17, 2014, at Pages 21736-21738. See also, story titled "USPTO to Hold Hearing on Subject Matter Eligibility of Claims Reciting Laws of Nature" in TLJ Daily E-Mail Alert No. 2,640, April 16, 2014.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) in response to its Public Notice (PN) regarding the FCC's attributable material relationship rule. This PN is DA 14-414 in GN Docket Nos. 12-268 and 13-185 and WT Docket No. 05-211. The FCC released it on March 27, 2014. See also, notice in the Federal Register, Vol. 79, No. 71, April 14, 2014, at Pages 20854-20855.

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