News from September 1-5, 2002

FCC Announces Agenda for September 12 Meeting
9/5. The Federal Communications Commission (FCC) announced the agenda for its September 12 open meeting. There are two items. First, the FCC will consider a Notice of Proposed Rulemaking (NPRM) concerning its media ownership rules, pursuant to Section 202(h) of the Telecommunications Act of 1996.
Second, the FCC will consider a NPRM and Memorandum Opinion and Order concerning possible revisions to the rules on unsolicited advertising over the telephone and facsimile machine and the possible establishment of a national do not call list. This is CC Docket No. 92-90.
The meeting will be held at 9:30 AM in the FCC's Commission Meeting Room (TW-C305).
House Transportation Committee Holds Hearing on Driver's Licenses
9/5. The House Transportation Committee's Subcommittee on Highways and Transit held a hearing titled "Driver's License Security Issues."
Subcommittee Chairman Rep. Tom Petri (R-WI) stated that "We find ourselves at a crossroads of sorts. We want to improve the security of driver's licenses to avoid not just their use by terrorists, but also by other criminal enterprises and individuals. ... But we don't want to see this occur at the expense of the personal liberty or privacy of law abiding individuals. We also are mindful that many of the issues we are concerned with here today are state, not federal issues."
Several witnesses cautioned about the dangers of creating a national identification system. The Eagle Forum's Lori Waters stated that "The real question is not about a person getting a driver's license fraudulently to drive around town but rather about what else he could do with it -- open a bank account, cash a check, get a library card, board a plane, etc. There is no question that appropriate measures should be implemented to minimize the potential for driver's license fraud, and states can and are meeting this challenge. However, some people are advocating significant federal intervention in this state domain. In the name of security and ``anti terrorism,´´ proposals such as driver's license standardization and linkage of databases to tag and track Americans are on the table for discussion."
Waters concluded that "these were bad ideas before 9/11, and they are still bad ideas today. The answer to our security problems is control of our borders and better intelligence. Federal driver's license standardization is a dangerous path that should not be taken. It is nothing more than a nice sounding label for a national identification system."
The Center for Democracy and Technolgy's (CDT) Ari Schwartz stated that "The state driver's license ... is now used as a primary means of authenticating identity in a wide range of commercial and governmental transactions having nothing to do with operating a motor vehicle. In the wake of the horrific attacks of September 11, some have suggested that we should standardize the design of the state driver's license, add more features to the card and create data systems linked to the card."
He continued that "One year after the September 11 attacks, there is no evidence that flaws in the design and security of drivers' licenses themselves facilitated the hijackers in carrying out their plans. From what we know, most of the hijackers were not using stolen, counterfeit or altered ID cards or ID cards from a foreign country. Rather, they were using legitimate state driver’s licenses or non-driver ID cards obtained from DMV offices. ... These problems are not ones that could be cured by introducing more biometrics in the cards themselves or by creating databases that link together state or commercial databases."
On May 1, Rep. Jim Moran (D-VA) and Rep. Tom Davis (R-VA) introduced HR 4633, the Driver's License Modernization Act of 2002. This bill would establish standards for state programs for the issuance of drivers' licenses and identification cards. It was referred to the House Transportation Committee, the House Judiciary Committee, and the House Science Committee.
Rep. Moran stated in a release that the bill would "Ensure drivers' licenses would be more foolproof by including a biometric feature -- such as a retinal scan or finger print -- on an encrypted smart chip embedded on the drivers' licenses."
He stated also that it would "Require states motor vehicle departments' databases to be linked, thereby allowing one state's motor vehicle department to verify the identity of an individual from another state applying for a driver's license."
See, prepared testimony of witnesses: Roger Cross (Administrator, Wisconsin Division of Motor Vehicles),
Rep. John Weaver (Kentucky State Representative), Sen. Betty Karnette (California State Senator), Katie Corrigan (ACLU), Lori Waters (Eagle Forum), and Ari Schwartz (CDT). See, also Transportation Committee release.
PWC Study Rates USPTO Web Site Best in Government
9/5. Price Waterhouse Coopers (PWC) released a report [44 pages in PDF] titled "The State of Federal Websites: The Pursuit of Excellence". The report picked the top 12 federal agency web sites. The U.S. Patent and Trademark Office (USPTO) was ranked first. See also, USPTO release.
The report was released by PWC's Endowment for the Business of Government. It was written by Genie Stowers of San Francisco State University.
The report states that it "rated 148 federal websites along the following dimensions: site services provided online, quality of user help features, quality of services navigation, site legitimacy, and accessibility. Based on her analysis, the following five federal government websites were rated highest: U.S. Patent and Trademark Office, Department of Health and Human Services, Department of Education, Department of the Treasury, and Department of the Navy."
The report also listed the scores and rankings for the seventh through twelfth rated web sites: Agriculture, Mine Safety and Health Administration, Indian Health Service, Veteran's Affairs, Defense, Small Business Administration, Railroad Retirement Board.
In July, IBM and PWC announced that IBM would acquire PWC's business consulting and technology services unit. See, IBM release. IBM has received more patents that any other company for each of the last nine years. The USPTO issued it over 3,000 patents in 2001. See, USPTO report on top patenting entities in 2001.
Senate Judiciary Committee Rejects Justice Owen in Party Line Vote
9/5. The Senate Judiciary Committee rejected the nomination of Texas Supreme Court Justice Priscilla Owen to be a Judge of the U.S. Court of Appeals for the 5th Circuit on a party line vote of 10-9. All of the Democrats voted against her. President Bush labeled the action "shameful, even by Washington standards". See, Bush statement.
Sen. Patrick Leahy (D-VT), Chairman of the Committee, stated that she is "a nominee whose record is too extreme even in the context of the very conservative Texas Supreme Court." He cited her anti abortion and pro-business record on the Texas Supreme Court. See, prepared statement.
The Committee also rejected the nomination of U.S. District Court Judge Pickering to be a Judge on the Fifth Circuit earlier this year.
President Bush stated that "I know Justice Owen well. She is an outstanding judge and a woman of integrity who has received outspoken bipartisan support. Based on her distinguished service with the Texas Supreme Court for seven years, the American Bar Association unanimously rated her, "well qualified," the highest rating the organization can bestow upon a nominee. She is known to be a fair and impartial judge who strives to interpret the law fairly."
"What the Democrat members of the Senate Judiciary Committee have done to Justice Owen is shameful, even by Washington standards. They have distorted her record and misconstrued her opinions. They have determined that a nominee's experience, academic credentials, and character are inconsequential."
"Justice Owen's nomination should be brought to the floor of the Senate for a vote. If the full Senate were to vote on her nomination today, I am confident she would be confirmed. The Democrats on the Judiciary Committee know this, and therefore, voted to prevent it," said Bush.
The vote will prevent Justice Owen from being considered by the full Senate, where she would likely prevail.
Sen. Leahy also stated that he is "greatly concerned about Justice Owen's record of ends oriented decision making as a Justice on the Texas Supreme Court. As one reads case after case, particularly those in which she was the sole dissenter or dissented with the extreme right wing of the Court, her pattern of activism becomes clear.  Her legal views in so many cases involving statutory interpretation simply cannot be reconciled with the plain meaning of the statute, the legislative intent, or the majority’s interpretation, leading to the conclusion that she sets out to justify some pre-conceived idea of what the law ought to mean."
Sen. Leahy also referenced Bush's advisor, Karl Rove. He said that "Plucked from a law firm by political consultant Karl Rove, Justice Owen ran as a conservative, pro-business candidate for the Texas Supreme Court, and she received ample support from the business community. She fulfilled her promise, becoming the most conservative judge on a conservative court, standing out for her ends oriented, extremist decision making. Now, on a bigger stage, the President and Mr. Rove want a repeat performance".
Attorney General John Ashcroft also condemned the vote. He said that "today marks the first time in U.S. history that a judicial nominee who has been unanimously rated 'well-qualified' by the ABA was voted down." He also said that "Senate Democrats have indicated an unfortunate trend toward unfairness against qualified women nominated by this Administration." He cited two other judicial nominees -- Deborah Cook and Carolyn Kuhl -- as examples. See, Ashcroft statement.
1st Circuit Rules in Cell Tower Permit Case
9/5. The U.S. Court of Appeals (1stCir) issued its opinion in ATC Realty v. Town of Kingston, a cell tower permit case. The Appeals Court reversed a District Court order to grant permits to construct a cell tower.
Background. The plaintiffs, ATC Realty and SBA Towers, develop cell towers, and then lease antenna facilities on these towers to wireless service companies. They sought permits from the Town of Kingston, New Hampshire, to construct a tower to fill a gap in coverage of wireless service companies. It was one of two applications considered at the same time. Kingston rejected the ATC/SBA applications, and granted the applications of its competitor.
Kingston's written determination listed four reasons, including its decision to "require cooperation and coordination between telecommunications service providers", "reduce adverse impacts on neighborhood aesthetics", "reduce the visual intrusiveness", and require that "all other reasonable opportunities have been exhausted".
District Court. ATC and SBA filed a complaint in U.S. District Court (DNH) against Kingston, alleging that the refusal was not based upon substantial evidence, as required by 47 U.S.C. § 332(c)(7)(B)(iii). The District Court granted summary judgment to ATC and SBA. Kingston appealed.
Court of Appeals. The Appeals Court reversed, and entered summary judgment in favor of Kingston.
"This case does not involve a claim that the Board has effectively prohibited the provision of telecommunication services needed to close a service gap. See 47 U.S.C. § 332(c)(7)(B) (i)(II). Rather, the Board has granted permission to plaintiffs' competitors to build a tower which will close the service gap along Route 125."
The Appeals Court found that "the plaintiffs have failed to demonstrate that the Board's selection was not supported by substantial evidence. The Planning Board was presented with two proposed towers that were virtually identical: the towers were of the same height; covered the same area; accommodated almost the same number of wireless providers; could be seen, in comparable fashion, from Route 125; had residential abutters; and were roughly equidistant from commercial zones. There is only one substantive difference between the proposed towers: unlike American Tower's application, plaintiffs' proposal engendered much opposition due to its adverse impact on the surrounding neighborhood aesthetic."
DOJ Recommends Approval of Verizon's Virginia Long Distance Application
9/5. The Antitrust Division of the Department of Justice (DOJ) issued its evaluation recommending that the Federal Communications Commission (FCC) approve Verizon's Section 271 application to provide in region interLATA service in the state of Virginia.
Assistant Attorney General Charles James stated in a DOJ release that "The available evidence suggests that generally, Verizon has succeeded in opening its local telecommunications markets in Virginia to competition".
Sarah Deutsch, VP and Associate General Counsel of Verizon, stated in a release that "we are confident that the FCC will approve this long distance application". October 30 is the FCC's statutory deadline for issuing its decision to approve or reject the application.
Sen. Allen Opposes Sen. Biden's Anticounterfeiting Bill
9/5. Sen. George Allen (R-VA) released a statement in which he announced and explained his reasons for withdrawing his support for S 2395, the Anticounterfeiting Amendments of 2002, sponsored by Sen. Joe Biden (D-DE). The original version of the bill applied only to physical features, such as certificates of authenticity included in commercial shrink-wrapped software, while the version of the bill approved by the Senate Judiciary Committee dropped the "physical" features limitation, thus expanding the bill to cover digital or cyber authentication marks.
Sen. Biden introduced the bill on April 30, 2002. The bill, as introduced, would amend 18 U.S.C. § 2318, regarding trafficking in counterfeit labels and documentation for software, movies, and records. The original bill would criminalize "illicit authentication features", and create a private right of action for copyright owners.
The original bill defines the term "authentication feature" as "any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other physical feature that either individually or in combination with another feature is used by the respective copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, or documentation or packaging is not counterfeit or otherwise infringing of any copyright". (Emphasis added.) See, story titled "Biden Bill Would Ban Illicit Authentication Features" in TLJ Daily E-Mail Alert No. 423, May 2, 2002.
The Senate Judiciary Committee amended and approved the bill on July 18, 2002. However, it removed the reference to "physical" features.
Sen. Allen, who had been a cosponsor of the original bill, stated that "Originally, this bill took a scalpel's precision to a very specific and identifiable problem, tampering with or counterfeiting physical authentication features ... But what a difference a word makes. Opening this legislation to the digital realm has caused the virtually unanimous industry support behind it to evaporate, and it has raised a host of troubling liability issues that cause substantial harm to Internet service providers."
Sen. Allen added that "While we all agree that those who knowingly traffic in illegal digital content should be held liable, this bill was not intended to be the vehicle to address that issue ... The intense debate over digital rights management merits more attention than taking a narrowly focused bill that solves one real problem, and changing it in a way that creates a host of new ones."
FCC Creates Federal State Forum on Regulatory Accounting Issues
9/5. The Federal Communications Commission (FCC) announced that it adopted an Order on August 27 establishing a "Federal State Joint Conference on Accounting Issues". The FCC stated in a release [PDF] that "The Joint Conference will be charged with ensuring that regulatory accounting data and related information filed by telecommunications companies are adequate, truthful, and thorough. Additionally, the Joint Conference will provide a forum for state and federal policymakers to consider, coordinate, and conduct initiatives that will ensure that the collection and exchange of regulatory accounting information is adequate and effective."
The FCC also stated that it "prescribes the accounting rules that govern the manner in which incumbent local exchange carriers (LECs) record and allocate their costs and revenues for regulatory purposes. These rules are known as the Uniform System of Accounts (USOA). The FCC also maintains the Automated Reporting Management Information System (ARMIS), through which certain incumbent LECs are required annually to report regulatory accounting information. The Joint Conference will begin a reexamination of federal and state regulatory accounting and related reporting requirements and make recommendations for improvements." (Parentheses in original.)
The order is numbered FCC 02-240. It was issued in FCC Docket No. WC 02-269. The FCC has yet to publish the order in its web site.
FCC Chairman Michael Powell issued a statement [PDF] in which he wrote that creating this federal state forum "puts in place an effective means for examining the Commission's regulatory accounting and reporting requirements. Its mission is straightforward -- to ensure that our regulatory and accounting reporting requirements are adequate to protect consumers and carry out our regulatory responsibilities under the Communications Act."
He added that "As telecommunications regulators, we are charged with a responsibility different than that of securities regulators. Regulatory accounting data and related information filed by telecommunications carriers is used by federal and state telecommunications policymakers to fulfill various responsibilities, such as determining interstate access charges, evaluating federal state jurisdictional separations, setting rates for unbundled network elements and calculating universal service support." (Emphasis in original.)
He concluded that "It is my hope that the Joint Conference will engage in a thorough analysis of individual accounting requirements to ensure that information captured in regulated accounts is both necessary and sufficient for our regulatory purposes."
FCC Commissioner Michael Copps released a statement [PDF] on August 20 advocating the prompt creation of this forum. He stated that "
in light of the accounting depredations we have witnessed in recent months, it is absolutely essential."
Copps asserted that "It may well be that additional, rather than fewer, accounting procedures are required for the discharge of federal and state regulatory responsibilities. The Conference should also reconsider the scope of our rules to gauge whether limiting accounting rules generally to just dominant carriers, as is the case today, is sufficient for protection of the public interest in these changed and challenging times."
DC Circuit Denies Requests for Rehearing in USTA v. FCC
9/5. The U.S. Court of Appeals (DCCir) denied numerous petitions for rehearing or rehearing en banc in USTA v. FCC, a case pertaining to FCC unbundling and line sharing orders.
On May 24, 2002, a three judge panel of the Court of Appeals issued its opinion in USTA v. FCC, granting petitions for review of an FCC unbundling order and line sharing order. Incumbent local exchange carriers (ILECs) and the U.S. Telecom Association (USTA), a group that represents them, challenged the Federal Communications Commission's (FCC) order requiring ILECs to lease a variety of unbundled network elements to competitive local exchange carriers (CLECs). They also challenged an FCC line sharing order that requires ILECs to lease to CLECs only a portion of local copper loops, rather than the whole line, for the purpose of offering DSL service. The Appeals Court granted both petitions. It remanded both rules to the FCC for further proceedings.
Subsequently, the FCC, USA, AT&T, Sprint, Covad, and WorldCom sought rehearing. On September 4, the Court of Appeals, en banc, denied all of those requests in a series of orders.
Herschel Abbott, BellSouth VP for Governmental Affairs, stated in a release that "We are gratified that the Court has held its ground on these crucial matters. Forcing incumbent phone companies to subsidize their competitors makes no sense. The Federal Communications Commission is considering changing its current UNE rules and we are confident that Chairman Powell will meet his self imposed end of the year 2002 deadline for the revision of these rules."
The USTA is pleased too. Walter McCormick, P/CEO of the USTA, also stated in a release that "We ... look forward to expeditious action. Both judicial mandate and a return to economic growth require the Commission to meet the Chairman's own goal of completing action on these important issues by the end of the year."
In contrast, CompTel urged the FCC to file a petition for writ of certiorari with the Supreme Court. It argued that the opinion in USTA v. FCC is "fundamentally in tension" with the Supreme Court's TELRIC ruling. See, release.
This is the case known as USTA v. FCC. Of course, there have been many cases named USTA v. FCC. This one is numbered 00-1012 and 00-1015. It is more fully captioned as United States Telecom Association, Petitioner v. Federal Communications Commission and United States of America, Respondents, Bell Atlantic Telephone Companies, et al., Intervenors, No. 00-1012, consolidated with Nos. 01-1075, 01-1102, and 01-1103, and United States Telecom Association, Petitioner v. Federal Communications Commission and United States of America, Respondents, AT&T Corporation, et al., Intervenors, No. 00-1015, consolidated with No. 00-1025.
People and Appointments
9/5. The Senate Judiciary Committee approved the nomination of U.S. District Court Judge Reena Raggi to be a Judge of the U.S. Court of Appeals for the Second Circuit.
9/5. Rep. Chris Cox (R-CA) named James Freeman his new Legislative Director. Freeman is a former television news producer and USA TODAY online columnist. Peter Uhlmann remains Chief of Staff. See, Cox release.
More News
9/5. The House Judiciary Committee met to mark up several bills. The last item on the agenda was HR 4561, the Federal Agency Protection of Privacy Act, sponsored by Rep. Bob Barr (R-GA). The bill would require federal agencies to the agency shall prepare and make available for public comment an initial privacy impact analysis when it proposes new regulations. The Committee held over this item. The Committee has not yet scheduled its next mark up meeting.
District Court Finds Contributory and Vicarious Infringement by Madster
9/4. The U.S. District Court (NDIll) issued its Memorandum Opinion and Order in the consolidated Aimster copyright litigation, granting a motion for preliminary injunction filed by various record companies and music publishers against the Aimster file sharing service, which is now known as Madster.
The Court held that the "Plaintiffs have unequivocally established that Aimster's users are engaged in direct copyright infringement." It rejected Aimster's Audio Home Recording Act (AHRA) defense.
The Court next held that the plaintiffs demonstrated a likelihood of success on the merits that Aimster engaged in both contributory and vicarious infringement.
The Court rejected Aimster's defense that its service is capable of substantial non-infringing uses, under the Supreme Court's decision in Sony v. Universal City Studios, 464 U.S. 417 (1984). The Court also found that Aimster is not eligible for any of the safe harbor protections of the Digital Millennium Copyright Act, because of its failure to comply with 17 U.S.C. § 512(i).
The Court has yet to issue the preliminary injunction order. The Court's opinion orders the plaintiffs to submit proposed language for the preliminary injunction within five business days.
Madster has filed a bankruptcy petition. However, the bankruptcy court lifted the bankruptcy stay for the purpose of allowing this court to rule on this motion for preliminary injunction. Madster was previously known as Aimster, but ceased using the name, and associated domain names, when AOL asserted trademark rights related to its AOL instant messaging (AIM) service.
Hilary Rosen, Ch/CEO of the Recording Industry Association of America (RIAA), which represents record company plaintiffs, stated in a release that "This unequivocal ruling today underscores that companies and individuals will not be permitted to build a business on music they do not own and will be held responsible for their actions. Chief Judge Aspen considered every argument presented by defendants and one by one rejected each argument. He wrote that Aimster 'is a service whose very raison d'etre appears to be the facilitation of and contribution to copyright infringement on a massive scale.' "
Second Circuit Affirms in Gerber v. Computer Associates
9/4. The U.S. Court of Appeals (2ndCir) issued its opinion in Gerber v. Computer Associates, affirming a $5.7 Million verdict against Computer Associates (CAI) in a shareholder action arising out of CAI's acquisition of another software company.
CAI is a large software company. In 1991 it acquired, by tender offer and follow up merger, another software company named On-Line Software International. Joel Gerber was an On-Line shareholder.
Gerber filed a complaint in U.S. District Court (EDNY) against CAI alleging that in acquiring On-Line, CAI paid more money per share to On-Line's Chairman and CEO than it paid to other shareholders, in violation of 15 U.S.C. §§ 78l(i), 78m(d)-(e), and 78n(d)­(f). Gerber sought class action status. The District Court certified the class. A jury of the District Court returned a verdict of $5.7 Million for the class. The District Court entered judgment on the verdict, and denied CAI's JMOL and other motions. The Appeals Court affirmed.
Consumer Groups Petition FTC to Promulgate Rule Banning Deceptive Spam
9/4. The Telecommunications Research and Action Center, the National Consumers League, and Consumer Action submitted a petition [14 pages in PDF] to the Federal Trade Commission (FTC) requesting that it initiate a rule making proceeding to adopt a rule pertaining to deceptive practices in the sending of unsolicited commercial e-mail. See, full story.
USPTO to Host Meeting on Patent Examinations for Semiconductors and Electrical and Optical Systems
9/4. The U.S. Patent and Trademark Office's (USPTO) Technology Center 2800 announced that it will hold a half day event on the morning of October 15 titled "Semiconductor Customer Partnership Meeting".
The purpose of the meeting is to discuss the quality and timeliness of the examination process for applications pertaining to semiconductors, electrical and optical systems and components.
Those planning to attend should contact Tom Thomas at or 703 308-2772. The meeting will be held at Crystal Park 1, Suite 819, 2011 Crystal Drive, Arlington, Virginia. See also, USPTO notice.
IIPI To Host Conference on Specialized IP Courts
9/4. The International Intellectual Property Institute (IIPI) will host a two day conference titled "Specialized Intellectual Property Courts" on September 12 and 13 in Washington DC.
The first day of the conference will be held in the Moot Court Room of the George Washington University Law School. Highlights include the following:
8:30 AM. Welcoming Comments: Bruce Lehman (IIPI) and others.
9:00 AM. Panel: Judicial Capacity Regarding the Enforcement of Intellectual Property Disputes -- What we Know about Specialized IP Courts in the World Today: Judge Randall Rader (Federal Circuit), Prof. Michael Ryan (GWU), and Christian Wichard (WIPO).
10:30 AM. Panel: Case Studies on Specialized IP Courts and their Effect on the Improvement of IP Litigation: International Developments in Developed Economies.
12:30 PM. Luncheon Keynote Address titled "Specialized IP Courts and the Rule of Law" by Prof. Hugh Hansen (Fordham Law).
2:00 PM. Panel: Case Studies on Specialized IP Courts and their Effect on the Improvement of IP Litigation: American Perspectives: Gerald Mossinghoff (Oblon), Judge Edward Damich (Court of Federal Claims), Judge Pierre Leval (2nd Circuit), Judge Ronald Whyte (U.S. District Court, NDCal).
3:00 PM. Lecture: Evaluating Developing Country Judicial System Performance.
4:00 PM. Panel: Case Studies on Specialized IP Courts and their Effect on the Improvement of IP Litigation: IP Courts in Developing, Transition and Small Economies.
The second day of the conference will be held at the Markey National Courts Building at 717 Madison Place, NW. Highlights include an opening speech by USPTO Director James Rogan, and panels titled "Training and Reforming the IP Judicial Capacity", "The Role of Alternative Dispute Resolution", "Handling Administrative Determinations and Appeal Procedure", and "Perspectives from Industry - Judicial Enforcement in Developing Countries".
See also, IIPI release and online registration form.
People and Appointments
9/4. David Brodsky, Laurie Smilan, and Michele Rose joined the law firm of Latham & Watkins. Brodsky, who has joined the firm's New York City office, was previously Managing Director and General Counsel -- Americas for Credit Suisse First Boston. Smilan, who has joined the Northern Virginia office, was previously the Co-Managing Partner of the Northern Virginia office of the law firm of Wilson Sonsini. Rose, who also has joined the Northern Virginia office, was previously a partner at Wilson Sonsini. See, release.
More News
9/4. Sen. William Frist (R-TN) and Sen. Pat Roberts (R-KS) introduced S 2902, the Mathematics and Science Education Excellence Act. The bill would create a grant program to promote mathematics and science education. It was referred to the Senate Committee on Health, Education, Labor, and Pensions.
9/4. The U.S. Court of Appeals (FedCir) issued its opinion [MS Word] in PIN/NIP v. Platte Chemical Company, a patent infringement case involving the growing of potatoes. The District Court granted summary judgment to Platte that a claim of its U.S. Patent No. 5,622,912 is not invalid under 35 U.S.C. § 102. The jury returned a verdict that a claim of the patent is not invalid under 35 U.S.C. § 103, that PIN/NIP infringed two claims of the 912 patent, and that one claim satisfied the written description requirement of 35 U.S.C. § 112. The Appeals Court affirmed in part, reversed in part and vacated in part.
9/4. The Federal Communications Commission (FCC) announced that "an investigation by the FCC's Enforcement Bureau has led to the conviction and sentencing of William Flippo on eight counts, which include unlicensed operation and causing intentional interference to Amateur Radio Communications." Flippo violated 47 U.S.C. § 301 and § 333. He was sentenced to 15 months imprisonment, and fined $25,000. See, FCC release.
Lucent May Be Liable in Contract for Delay in Filing SEC Form S-3
9/3. The U.S. Court of Appeals (5thCir) issued its opinion [21 pages in PDF] in Herrmann Holdings v. Lucent, holding, as matter of Texas law, that a clause in a merger contract that provides that the acquiring company will use its best efforts to promptly file an S-3 form with the SEC, may give rise to a breach of contract action. See, full story.
EPIC and Privacy International Release Annual Privacy Report
9/3. The Electronic Privacy Information Center (EPIC) and Privacy International released the 2002 edition of their annual survey of the state of privacy in over fifty countries. It is titled "Privacy and Human Rights 2002: An International Survey of Privacy Laws and Developments".
The report can be downloaded in three parts, without charge. See, Analysis: Forward, Overview, Threats to Workplace Privacy [111 pages / 782KB in PDF], Country Reports: Argentina to Lithuania [985 KB in PDF], and Country Reports: Luxenbourg to United States [855 KB in PDF]. Alternatively, the report can be purchased in hard copy from EPIC's online bookstore. See also, Privacy International release.
The report concludes that "The events of September 11, 2001 brought new challenges to the protection of privacy in the modern era. In the rush to strengthen national security and to reduce the risk of future terrorist acts, governments around the world turned to legal authority and new technology to extend control over individuals. Many of these proposals have had far-reaching consequences for the protection of privacy."
"Another significant development was the adoption, in June 2002, of the European Union's Electronic Communications Privacy Directive. This Directive allows European Union member states to enact laws requiring Internet Service Providers, and other telecommunications operators, to retain the traffic and location data of all people using mobile phones, text messaging, land-line telephones, faxes, e-mails, chatrooms, the Internet, or any other electronic communication devices, to communicate."
However, the report also finds that "efforts to pass new data protection laws or to strengthen existing laws are continuing in Eastern Europe, Asia and Latin America." In addition, "laws or codes to protect privacy in the workplace are gaining more prominence."
WTO DG Panitchpakdi Addresses Trade and Doha
9/3. World Trade Organization (WTO) Director General Supachai Panitchpakdi gave a speech in Johannesburg, South Africa, titled "Trade and Sustainable Development: The Doha Development Agenda".
He spoke at the "World Summit on Sustainable Development". He focused on how the Doha Development Agenda, and free trade in general, will benefit poor nations.
"At Doha last November, in a climate of dangerous international uncertainty, WTO members showed the determination to make multilateralism work," said Panitchpakdi. "The Doha Development Agenda is more than a catchword or a vague expression of shared sentiment. It offers the promise of real development gains. An open trading system will help increase income levels and reduce poverty."
He also touched on intellectual property rights, but only in the context of drug patents. He stated that "On drugs patents and public health, issues which are vital for sustainable development, a separate Ministerial Declaration from Doha states that the WTO's TRIPS Agreement “does not and should not prevent members from taking measures to protect public health”. This declaration is a boost for global efforts to address the public health problems afflicting many developing and least developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics."
People and Appointments
9/3. President Bush nominated Scott Muller to be General Counsel of the Central Intelligence Agency (CIA). See, White House release.
More News
9/3. LG.Phillips LCD filed a complaint in U.S. District Court (CDCal) against Tatung alleging infringement of patents pertaining to thin film transistor liquid crystal display technology.
New WTO Director To Pursue Doha Agenda
9/2. The new World Trade Organization (WTO) Director General, Supachai Panitchpakdi, held his first press conference. He began by stating that "One of the most urgent issues that I intend to undertake is to see to it that we move into the phase of substantive negotiation under the Doha Development Agenda as soon as we can, as intensively as we can, as productively as we can." See, transcript.

Go to News from August 26-31, 2002.