TLJ News from November 16-20, 2005

People and Appointments

11/19. President Bush nominationed Michael Michalak "a Career Member of the Senior Foreign Service, Class of Minister-Counselor, for the rank of Ambassador during his tenure of service as United States Senior Official to the Asia-Pacific Economic Cooperation Forum". See, White House release.

AG Gonzales Addresses IPR Enforcement in Beijing

11/18. Attorney General Alberto Gonzales gave a lengthy speech in Beijing, People's Republic of China, devoted solely to intellectual property rights (IPR) enforcement.

Alberto GonzalesGonzales (at right) stated that "almost 40 percent of the 500 commercial piracy cases now under investigation by the FBI have ties to China. The range of pirated and counterfeit products originating here stretches across a wide range of industries, including counterfeit pharmaceuticals, cigarettes, handbags and clothing, and pirated digital works, such as movies, music, software, and computer games."

He said that the "partnership between China and the United States ... must include a mutual commitment to enforce the intellectual property rights that form the foundation of our dynamic global economy."

He said that "our work must proceed on several fronts. We must strengthen our global enforcement efforts, ensure strong intellectual property rights laws, increase law enforcement resources devoted to intellectual property enforcement, and work to increase the number of joint U.S.-China operations. Intellectual property crime is now undeniably global in nature. The digital age has created a borderless world for large criminal conspiracies -- so our law enforcement efforts must be global and borderless as well. Every member of the global economy has a responsibility to keep counterfeit goods out of the global market."

He continued that "To combat this growing threat, law enforcement agencies from China and the United States must work together to develop and prosecute international piracy cases. Individually, we must both have strong domestic enforcement, and I support China’s efforts to increase its capacity in this area. But we cannot work alone. Yesterday, I personally urged my counterparts here in China to continue China’s growing cooperation with U.S. law enforcement in combating intellectual property crime."

Gonzales also reviewed recent Department of Justice (DOJ) activities and initiatives related to IPR, including a legislative proposal titled the "Intellectual Property Protection Act of 2005". See, draft [17 pages in PDF] and story titled "AG Gonzales Proposes Intellectual Property Protection Act" in TLJ Daily E-Mail Alert No. 1,252, November 14, 2005.

Gonzales said that "This legislative package would strengthen penalties for repeat copyright criminals, expand criminal intellectual property protection, and add critical investigative tools for both criminal and civil enforcement. Those who steal the hard work and innovation of honest entrepreneurs and workers should not be allowed to enjoy the profits of such activity. This legislation would also make clear that exporting infringing goods is the same as importing them ... and should be punished accordingly."

9th Circuit Rules on Work Made for Hire Issues in Twentieth Century Fox v. Dastar

11/18. The U.S. Court of Appeals (9thCir) issued its divided opinion [34 pages in PDF] in Twentieth Century Fox v. Dastar, a copyright infringement case involving the issue of whether Dwight Eisenhower's book, Crusade in Europe [Amazon], was a work made for hire. The District Court held that Eisenhower's book was a work made for hire for Doubleday (which licensed film rights to Twentieth Century Fox), and that Dastar's recent video infringed the copyright. The Court of Appeals affirmed.

This opinion, and dissent, contain a fascinating discussion and debate over the principle of works made for hire. However, the analysis is of limited value today. Eisenhower authored the book over fifty years ago. The statute in effect at the time was the Copyright Act of 1909. Since that time the concept of work made for hire has been altered significantly, first by court opinions, and then by the Copyright Act of 1976. The Judges in this case applied the law of works made for hire as it was, not as it is.

Shortly after World War II, Eisenhower contracted with Doubleday regarding the book. Doubleday sold television rights to Fox, which produced a film. Ten years ago, Dastar made a video documentary titled "Campaigns in Europe". Twentieth Century Fox and others eventually filed a complaint in U.S. District Court (CDCal) against Dastar and others alleging, among other claims, copyright infringement, based on Dastar's use of large sections of the Eisenhower book without permission.

One of the reasons that the status of the work under copyright law was less than clear was that Eisenhower and Doubleday were also endeavoring to structure the agreement with the tax consequences for Eisenhower in mind.

This case is Twentieth Century Fox Film Corporation, et al. v. Dastar Corporation, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 03-57052, 04-55410 and 03-57234, appeals from the U.S. District Court for the Central District of California, D.C. Nos. CV-98-07189-FMC, CV-98-07189-FMC, and CV-98-07189-FMC, Judge Florence Cooper presiding. Judge Richard Tallman wrote the opinion of the Court of Appeals, in which Judge Jerome Farris joined. Judge Dorothy Nelson wrote a dissent.

This case also involved Lanham Act claims, which, after review by the Supreme Court, have been finally decided. See, story titled "Supreme Court Reverses in Dastar v. Fox" in TLJ Daily E-Mail Alert No. 672, June 3, 2003.

Senate Commerce Committee Holds Hearing on Future of Science and Universities

11/18. The Senate Commerce Committee (SCC) held a hearing titled "Future of Science".

Eric Cornell, of the National Institute of Standards and Technology, was the only witness not from a university. He focused on quantum computing in his prepared testimony [5 pages in PDF]. He explained what this topic is. He then argued that "Teams from around the globe are conducting research trying to solve the riddle of quantum computing. If the US stays on the sidelines, then we will watch others make profound discoveries that will ultimately improve the competitiveness of their industries and quality of life."

Peter Agre, of Duke University, wrote in his prepared testimony [6 pages in PDF] that "I greatly fear that we will be overtaken by other countries." He wrote that "I worry that US government funding for scientific research may some day come with absolute restrictions that prevent change of focus when unexpected discoveries appear. I also worry that US government funding for scientific research will be reduced at this time of a huge federal budget deficit."

He also cautioned about visa restrictions. "Much outstanding research undertaken in US laboratories is performed by scientists that came here from other countries. For reasons including increased restrictions on visas for scientists who wish to work and study in the US, the number of graduate students and scientists coming here is now declining."

He also argued that scientists are being mistreated by prosecutors at the Department of Justice (DOJ). He cited the examples of Wen Ho Lee and Thomas Butler. He argued that in the case of Wen Ho Lee, "our standing with East Asian students has not been restored."

James Heath of the California Institute of Technology wrote in his prepared testimony [5 pages in PDF] about training more scientists in the U.S. He wrote that "The WWII and Sputnik generations of American scientists largely developed the information technologies and biomedical and chemical industries that provide for much of the U.S. economy today. The nanotech and biotech revolutions are, in large part, being developed by foreign-born scientists that immigrated to the U.S. for graduate school."

Now, he said that "Asian countries, in general, are increasingly able to attract their own scientists back from the U.S. by providing them with exciting opportunities and significant resources." He warned that "If the U.S. is to maintain its competitive advantage" it "must also take strong steps towards encouraging and preparing our children to actively participate in developing this future by becoming the scientists and engineers ..."

Samuel Ting, of the Massachusetts Institute of Technology (MIT), focused on research in physics in his prepared testimony [8 pages in PDF]. He advocated "support to basic research in universities to train students and to attract the world's best minds to work in the U.S. He also advocated "U.S. participation in international collaborations". He also said that "it is important to ensure that the location of the next generation of accelerators be in the United States".

See also, written statement of Sen. Ted Stevens (R-AK).

More Capitol Hill News

11/18. The Senate Finance Committee approved S 2027, the "U.S.-Bahrain Free Trade Agreement Implementation Act", by a vote of 20-0.

People and Appointments

11/18. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register requesting nominations for its Information Security and Privacy Advisory Board (ISPAB). There is no deadline. See, Federal Register, November 18, 2005, Vol. 70, No. 222 at Pages 69952 - 69953.

11/18. Thomas Barthold will be named acting Chief of Staff of the Congress's Joint Committee on Taxation (JCT), effective immediately upon George Yin's departure. Barthold is currently the Deputy Chief of Staff.

11/18. Steve Norton was named speechwriter at the Office of the U.S. Trade Representative (USTR). He previously wrote for Congressional Quarterly (CQ). He has also worked for LEGI-SLATE, an online news service owned by the Washington Post Company, and the National Journal's CongressDaily. See, USTR release.

More News

11/18. The U.S. Court of Appeals (6thCir) issued its opinion [PDF] in Stratienko v. Cordis, a case involving claims of misappropriation of a trade secrets and breach of contract. These are state law claims. Federal jurisdiction is based upon diversity of citizenship. The Court of Appeals affirmed the District Court's summary judgment for the defendant, Cordis. The District Court and Court of Appeals held, among other things, that under the state law of Tennessee, there is no cause of action for conversion of trade secrets. This case is Alexander Stratienko v. Cordis Corporation, U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 04-6349, an appeal from the U.S. District Court for the Eastern District of Tennessee, at Chattanooga, D.C. No. 02-00005, Judge Allan Edgar presiding.

11/18. Cisco Systems announced a "definitive agreement for Cisco to acquire Scientific-Atlanta". Scientific-Atlanta provides set top boxes, end-to-end video distribution networks and video system integration. See, Cisco release.

11/18. The National Archives and Records Administration (NARA) changed the deadline for submitting comments in regarding the draft NARA guidance for implementing Section 207(e) of the E-Government Act of 2002. This Act requires the NARA to adopt "policies and procedures" that provide that federal statutes regarding archiving of government records "are applied effectively and comprehensively to Government information on the Internet and to other electronic records". The NARA had previously announced that comments are due by December 29, 2005. See, notice in the Federal Register, November 14, 2005, Vol. 70, No. 218, at Pages 69165 - 69168. The NARA has moved the deadline up to November 30, 2005. See, notice in the Federal Register, November 18, 2005, Vol. 70, No. 222, at Page 69994. See also, story titled "NARA Requests Comments on Archiving Internet and Other Electronic Records" in TLJ Daily E-Mail Alert No. 1,253, November 15, 2005.

11/18. The U.S. and Microsoft filed a pleading titled "Supplemental Joint Status Report on Microsoft's Compliance with the Final Judgments" in U.S. v. Microsoft, D.C. Nos. 98-1232 and 98-1233. The Court will also hold a status conference on November 30, 2005.

Abernathy to Leave FCC

11/17. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy announced that she will resign, effective December 9, 2005. President Bush has not yet nominated a replacement.

Kathleen AbernathyAbernathy (at right) used her resignation announcement [PDF] to articulate and advocate certain general principles regarding regulation of markets. However, she did not dwell on instances in which the FCC departed from these principles.

For example, she advocatedg "relying on competition, rather than regulation, as the best means of assuring that consumers get the telecommunications services they want at affordable rates."

She also wrote that "regulation is most effective when it deals with markets as they are -- not as they might once have been, and not as we would ideally like them to be".

She also wrote that "competitive markets depend on empowered consumers. Where consumers have choices, and the ability to make them, pervasive regulation is unnecessary. In line with this realization, we targeted regulation to those comparatively few situations in which marketplace competition and informed consumer choice do not increase consumer welfare."

She added that "For that reason, we have taken steps to make sure that emergency communications work reliably for us and for those who protect us, and we have provided parents with the information and tools needed to control their childrens’ multichannel TV viewing choices."

The FCC, in its May order regarding VOIP and 911, deprived consumers of the choice of whether or not to purchase E911 services with VOIP service.

The remaining three Commissioners all issued statements in which they praised her.

FCC Chairman Kevin Martin stated in a release [PDF] that "I have enjoyed working with Commissioner Abernathy since we joined the Commission together over four years ago. She has made valuable contributions to the agency during her tenure, and we have all benefited from her extensive knowledge of the communications industry."

Commissioner Michael Copps issued a release [PDF], and Commissioner Jonathan Adelstein issued a release [PDF], in which they praised Abernathy's personal qualities and character.

Reps. Terry and Boucher Propose New Internet Taxes

11/17. Rep. Lee Terry (R-NE) and Rep. Rick Boucher (D-VA) released a discussion draft [31 pages in PDF] of a bill to be titled the "Universal Service Reform Act of 2005". The bill would impose new taxes on a range of internet services for the purpose of subsidizing the Federal Communications Commission's (FCC) Universal Service Fund (USF) programs, including funding of rural telecommunications carriers, and funding of the scandal ridden schools and libraries program. See, full story.

House Science Committee Holds Hearing on Nanotech

11/17. The House Science Committee held a hearing titled "Environmental and Safety Impacts of Nanotechnology: What Research is Needed?"

Rep. Vernon Ehlers (R-MI) wrote in his opening statement [PDF] that there must be "environmental research and a appropriate regulatory framework for nanotechnology". See also, opening statement [2 pages in PDF] of Rep. Sherwood Boehlert (R-NY), the Chairman of the Committee.

Clayton Teague, Director of the National Nanotechnology Coordination Office, wrote in his prepared testimony [8 pages in PDF] that currently, "the Federal Government is funding forefront environmental, health, and safety (EHS) research to establish a strong foundation and much progress in understanding EHS implications has been made", but that "more research is needed".

See also, prepared testimony [PDF] of Richard Denison (Environmental Defense), prepared testimony [PDF] of Krishna Doraiswamy (DuPont Central Research and Development), prepared testimony [PDF] of Matthew Nordan (Lux Research Inc.), and prepared testimony [PDF] of David Rejeski (Smithsonian Institution).

EU Commissioner Advocates State Supported Innovation

11/17. Neelie Kroes, the EU Competition Commissioner, gave a speech in Brussels, Belgium, titled "Innovation from a Business Perspective: the State Aid Aspects". She argued that in Europe there is a market failure in the case of innovation, and that government should therefore provide aid to remedy this market failure.

She said that "A more innovative knowledge based economy is crucial for getting Europe back on the right economic track and keeping it there in a changing world."

Neelie KroesKroes (at left) argued that "state aid can be justified in cases where the evidence shows that there is a genuine market failure." Then, she offered this definition of "market failure": "where the overall benefit to the economy that is brought by filling a gap that markets do not meet naturally outweighs the potential distortion of competition caused."

She continued that "there are instances where markets fail to deliver an appropriate environment for innovation. These market failures have a negative impact on the risk-to-return ratio of innovative ventures. By giving State aid, it is possible to change the risk-to-return ratio and thereby encourage private actors to invest more in innovation. State aid policy therefore has a contribution to make, by laying down rules to target those market failures which hamper innovation and for which the benefits of state aid clearly outweigh competition concerns."

She referenced several forms of state aid to innovation, including "tax exemptions and subsidies", "state aid to risk capital", and aid for research and development. She also advocated "Subsidising SMEs to buy services from innovation intermediaries". (SMEs are small and medium sized enterprises.)

Finally, she advocated "supporting the development of poles of excellence through collaboration, clustering, and projects of common European interest". She explained that "Innovative clusters are businesses of all sizes grouped around research facilities. State aid could be used to strengthen regional clusters and to create European poles of excellence." That is, she wants to "build European Silicon valleys".

While Kroes advocated government planning of innovation, she also expressed some skepticism of this approach.

For example, when she advocated creating clusters such as Silicon Valley, she also asked rhetorically, "Can such a thing be created ``by decree´´?" and "And how do you avoid feeding fat cats or picking winners?".

She also said that "we must not be tempted to think that State aid is the innovation panacea. Effective competition is the most potent tool for creating natural incentives for companies to come up with new ideas and new products." And, she said that "We must never underestimate the damage done to Europe's image as an attractive place to invest by protectionist discourse directed primarily to domestic audiences."

People and Appointments

11/17. The Senate Commerce Committee (SCC) approved the nominations of William Kovacic and Thomas Rosch to be a members of the Federal Trade Commission (FTC), by unanimous consent. See, SCC release.

11/17. President Bush nominated Richard Crowder to be the Chief Agricultural Negotiator at the Office of the U.S. Trade Representative (USTR). See, White House release.

11/17. The Senate Judiciary Committee (SJC) approved the nomination of Emilio Gonzalez to be Director of the Department of Homeland Security's (DHS) Bureau of Citizenship and Immigration Services.

11/17. The Senate Judiciary Committee (SJC) approved four judicial nominees: Joseph Bianco (to be a Judge of the U.S. District Court for the Eastern District of New York, Timothy Burgess (District of Alaska), Gregory Van Tatenhove (Eastern District of Kentucky), and Eric Vitaliano (Eastern District of New York).

11/17. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nominations of Carol Dinkens and Alan Charles Raul to be the Chairman and Vice Chairman of the Privacy and Civil Liberties Oversight Board.

More Capitol Hill News

11/17. The Senate Commerce Committee (SCC) amended and approved S 687, the "Software Principles Yielding Better Levels of Consumer Knowledge Act". This bill, which is also known as the SPY BLOCK Act, pertains to spyware and other matters. See, SCC release.

11/17. The Senate Judiciary Committee (SJC) approved S 1789, the "Personal Data Privacy and Security Act of 2005".

11/17. The Senate Judiciary Committee (SJC) held an executive business meeting at which it again held over consideration of S 751, the "Notification of Risk to Personal Data Act".

11/17. The Senate Judiciary Committee (SJC) held an executive business meeting at which it again held over consideration of HR 683, the "Trademark Dilution Revision Act of 2005".

More News

11/17. U.S. Trade Representative (USTR) Rob Portman returned from a ten day trip to Europe, Africa, India, People's Republic of China, and Korea. See, USTR release summarizing his trip.

11/17. John Snow, the Secretary of the Treasury, gave a speech, in which he argued, among other things, that lower tax rates, especially for capital gains and dividends, promote innovation and investment.

Tempest in Tunis Subsides

11/16. The International Telecommunications Union (ITU) began its meeting in Tunis, Tunisia, which it describes as the second phase of the World Summit on Information Society (WSIS). See, WSIS web site. The meeting will continue through November 18, 2005.

Michael Gallagher (NTIA) and David Gross (State) held a news conference in Tunis on November 16 at which they announced an agreement that does not provide for United Nations regulation or governance of the internet. See transcript.

Gallagher is head of the Department of Commerce's National Telecommunications and Information Administration (NTIA) and Assistant Secretary of Commerce for Communications and Information. Gross is Deputy Assistant Secretary and U.S. Coordinator for International Communications and Information Policy in the Department of State's Bureau of Economic and Business Affairs.

On July 18, 2005, the United Nation's (UN) Working Group on Internet Governance (WGIG) released a report [24 pages in PDF] titled "Report of the Working Group on Internet Governance". It stated the UN's case for acquiring vast power to regulate various aspects of the operation and use of the internet. See, story titled "UN Seeks Vast Authority to Regulate Operation and Use of the Internet" in TLJ Daily E-Mail Alert No. 1,178, July 20, 2005.

However, the U.S. has opposed such proposals. See, stories titled "NTIA Rebuffs UN Efforts to Gain Control Over Internet Governance" in TLJ Daily E-Mail Alert No. 1,166, July 1, 2005, and "Ambassador Gross Says UN Will Not Be in Charge of the Internet" in TLJ Daily E-Mail Alert No. 1,212, September 13, 2005.

David GrossGross (at right) said at the November 16 news conference that "last night there was an agreement reached on the -- what is referred to as the Tunis Agenda for the Information Society ... It preserves the unique role of the United States Government in assuring the reliability and stability of the Internet. It took no action with regard to existing institutions including ICANN and others. It created no new International Organizations. It created a forum that will take place periodically -- that we think is quite positive for a number of reasons, not the least of which it provides an opportunity for private sector leadership, civil society leadership and engaging in a dialogue on the importance of technology and some of the changes going on and opportunities with regard to things such internet governance."

Gross added that "We are also very pleased that the definition of the internet governance was an appropriate one, one that focuses not so much on some of the technical aspects but rather focuses on the broad range of issues including spam, cyber crime, security related issues and the like. And also very, very importantly, it focuses and refocuses and reaffirms the importance of the free flow of information, reaffirms the importance of technology for facilitating that and for the positive economic, social and political developments that can occur from that.

When asked "Does it change the status quo at all?" and "Is there anything the United States is giving up here?", Gross responded "Nothing." He added that "There was the creation of a forum that will be an opportunity for civil society and the private sector to engage with governments on an equal footing in ways that are very unusual, particularly in the UN family."

Gallagher stated that "the document is a great success for the private sector. The document is a great success for the future of the Internet. The Internet lives to innovate another day as the result of our combined efforts here."

Also on November 16, 2005, the House unanimously approved HConRes 268 which encourages the administration not cede regulatory authority over the internet to the United Nations. Representatives also praised the agreement reached in Tunis. They also praised Gross and Gallagher for their successful efforts. See, following story in this issue titled "House Approves Resolution Opposing UN Regulation of Internet".

House Approves Resolution Opposing UN Regulation of Internet

11/16. The House approved HConRes 268 by a vote of 423-0. See, Roll Call No. 594. It supports administration efforts in opposition to United Nations regulation of the internet.

This resolution provides that "it is the sense of Congress that (1) it is incumbent upon the United States and other responsible governments to send clear signals to the marketplace that the current structure of oversight and management of the Internet's domain name and addressing service works, and will continue to deliver tangible benefits to Internet users worldwide in the future; and (2) therefore the authoritative root zone server should remain physically located in the United States and the Secretary of Commerce should maintain oversight of ICANN so that ICANN can continue to manage the day-to-day operation of the Internet's domain name and addressing system well, remain responsive to all Internet stakeholders worldwide, and otherwise fulfill its core technical mission."

Rep. John DoolittleRep. John Doolittle (R-CA) (at left) introduced this resolution on October 28, 2005. Rep. Doolittle, along with Rep. Rick Boucher (D-VA) and Rep. Bob Goodlatte (R-VA) held a news conference regarding internet governance, the conference in Tunis, and HConRes 268, on Wednesday morning, November 16. John Berthoud (President of National Taxpayers Union) and Steve DelBianco (Association for Competitive Technology) also spoke.

Rep. Doolittle stated that if the United Nations were to obtain regulatory authority over the internet, repressive and undemocratic nations, such as the People's Republic of China, Saudi Arabia, and Libya would seek to limit access to the internet and domain names for the purpose of suppressing free expression. He said that China has already created "the Great FireWall of China", and that China and Saudi Arabia are prosecuting people for expressing opinions online.

Rep. Boucher said that the Department of Commerce (DOC), which includes the National Telecommunications and Information Administration (NTIA), has been a "good steward", that "no one has demonstrated any problems", and that its administration has been "efficient and even handed".

One reporter asked whether the DOC had interjected politics into the Internet Corporation for Assigned Names and Numbers' (ICANN) consideration of a .xxx top level domain. Rep. Boucher said that the DOC had merely submitted a comment to the ICANN, as may any other nation or person. Rep. Goodlatte added that that issue "is a red herring".

Rep. Boucher was also asked about renewal of the current Memorandum of Understanding (MOU) between the DOC and the ICANN. He argued that "when this memorandum expires, it ought to be renewed".

Rep. Goodlatte discussed the agreement reached in Tunis on November 16. He said that "this appears to be a big win for the internet" and for the free flow of information. However, he cautioned that "certain countries will continue to push for more control over the internet".

DelBianco said that "network security and stability" is vital for continued innovation and investment. He said that "the current system has obviously not been a hindrance to growth and innovation on the internet. However, without continued confidence in the security and stability of the internet, usage of and investment in the network will be threatened."

DelBianco also discussed the "tempest in Tunis". He praised the agreement to leave technical management in the hands of the ICANN.

Berthoud focused on another argument against allowing the United Nations to regulate the internet -- taxes. He said that the establishment of an international internet governance body could result in taxation of use of the internet, and that this tax would fall heavily on the U.S.

Bush Discusses Freedom and Free Trade in Kyoto

11/16. President Bush gave a speech in Kyoto, Japan. He focused on "freedom"; he used the word over fifty times. He stated that "freedom is the surest path to prosperity and stability".

He also discussed the relationship between free trade and other aspects of freedom. He said that "Our best opportunity to spread the freedom that comes from economic prosperity is through free and fair trade. The Doha Round of negotiations in the World Trade Organization gives us a chance to open up markets for goods, and services, and farm products all across the globe. Under Doha, every nation will gain -- and the developing world stands to gain the most."

Bush continued that "the greatest obstacle to a successful Doha Round is the reluctance in many parts of the developed world to dismantle the tariffs, and barriers, and trade-distorting subsidies that isolate the world's poor from the great opportunities of this century."

He reviewed his proposal to eliminate tariffs over 15 years. On September 14, 2005, Bush gave a speech at the United Nations, in New York City, in which he proposed the elimination of "all tariffs, subsidies and other barriers to free flow of goods and services".

He then said that "Pacific Rim leaders who are concerned about the harmful effects of high tariffs and farm subsidies need to come together to move the Doha Round forward on agriculture -- as well as on services and manufactured goods. And this year's Summit in Korea gives APEC a chance to take a leadership role before next month's WTO meeting in Hong Kong."

The World Trade Organization (WTO) will hold its Sixth WTO Ministerial Conference in Hong Kong, China, on December 13-18, 2005. See, WTO notice. The Asia-Pacific Economic Cooperation (APEC) is currently meeting in Busan, Korea. See, APEC 2005 Korea web site.

He added that "APEC is the premier forum in the Asia-Pacific region for addressing economic growth, cooperation, trade, and investment. Its 21 member economies account for nearly half of all world trade. By using its influence to push for an ambitious result in the Doha Round, APEC can help create a world trading system that is freer and fairer -- and helps spread prosperity and opportunity throughout the Asia-Pacific region."

Portman Discusses APEC and Doha

11/16. U.S. Trade Representative (USTR) Rob Portman held a news conference in Busan, South Korea. See, transcript [6 pages in PDF]. He is there to attend the Asia-Pacific Economic Cooperation (APEC) meeting. See also, APEC 2005 Korea web site.

He stated that "We've had good discussions here on a number of topics from intellectual property to the Bogor goals to the trade facilitation issues and FTAs. We also had the chance to talk about the Doha round."

He added that "As we approach the Hong Kong Ministerial, the APEC countries will be recommending to our leaders who are going to be starting tomorrow and the next day, the strongest statement possible to help advance the Doha round with the recognition that more needs to be done in the area of agriculture, particularly market access in agriculture to unblock the talks."

A reporter from Korea asked Portman when the U.S. and Korea "plan to launch FTA and bilateral investment of treaties" talks. Portman responded that "we have a very strong economic relationship with Korea", but that "we have set no date for any kind of new agreement".

House Approves Resolution on Russia's Lack of IPR Protection

11/16. The House approved HConRes 230 by a vote of 421-2. See, Roll Call No. 593. This resolution expresses the sense of the House that Russia must protect intellectual property rights, and addresses Russia's efforts to join the World Trade Organization (WTO).

The resolution states that "accession to the World Trade Organization (WTO) represents an agreement to conform one's practices to the rule of law, and to international standards in the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)", that "Russia's regime to protect intellectual property rights does not conform with TRIPS standards", and that "the United States can ill afford deterioration of the world trading system by permitting the entry of a country into the WTO that has not demonstrated its willingness and ability to conform its practices to the requirements of the TRIPS".

The resolution concludes that "it is the sense of the Congress that (1) the Russian Federation should provide adequate and effective protection of intellectual property rights, or it risks losing its eligibility to participate in the Generalized System of Preferences (GSP) program; and (2) as part of its effort to accede to the World Trade Organization, the Russian Federation must ensure that intellectual property is securely protected in law and in practice, by demonstrating that the country is willing and able to meet its international obligations in this respect."

This resolution was introduced by Rep. Darrell Issa (R-CA). Rep. Walter Jones (NC) and Rep. Ron Paul (R-TX) cast the two no votes.

House Commerce Subcommittee Holds Hearing on Fair Use

11/16. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection held a hearing titled "Fair Use: Its Effects on Consumers and Industry". See full story.

Federal Circuit Denies Rehearing in Case Involving Prosecution Laches

11/16. The U.S. Court of Appeals (FedCir) issued an order [5 pages in PDF] in Symbol Technologies v. Lemelson Medical, a patent case involving the doctrine of laches. The Court of Appeals denied petitions for rehearing and en banc review, but amended the September 9, 2005, opinion [16 pages in PDF] of the three judge panel. The September 9 opinion affirmed the District Court's judgment that the asserted patent claims are invalid for lack of enablement, unenforceable under the doctrine of prosecution laches, and not infringed.

The just issued order disposes of a petition for a panel rehearing, and a petition for rehearing en banc. The order states that "The petition for panel rehearing is granted for the limited purpose of amending the opinion issued on September 9, 2005", and "The petition for rehearing en banc is denied".

The order sets forth the amendments to the September 9 opinion of the three judge panel. Among other things, it adds that "we hold that all of the claims of the 14 asserted patents are unenforceable under the doctrine of prosecution laches". The District Court had not yet applied the doctrine of laches to bar all claims.

This case pertains to Lemelson's bar code technology patents. Intel, which is a defendant in other litigation asserting these patents, has participated as an amicus curiae. It filed a amicus brief [17 pages in PDF] on the petitions for panel rehearing and en banc review.

Intel and other technology companies have argued that unreasonable delay in the prosecution of a patent leaves these companies unaware of hidden potential claims, and that the doctrine of laches properly protects such companies from these submarine patents.

See also, web page containing hyperlinks to pleadings, transcripts, orders, and opinions in this case. See also, story titled "Split Federal Circuit Allows Prosecution Laches Claim to Proceed" in TLJ Daily E-Mail Alert No. 355, January 28, 2002.

People and Appointments

11/16. On Tuesday, November 15, 2005, the Senate Banking Committee (SBC) held a hearing on the nomination of Ben Bernanke to be Chairman of the Federal Reserve Board. He stated in his prepared testimony that "I will make continuity with the policies and policy strategies of the Greenspan Fed a top priority." On Wednesday, November 16, the SBC held a business meeting at which it approved the nomination. See also, story titled "Bush Picks Bernanke to Replace Greenspan" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005.

11/16. Barry Nigro, Deputy Director of the Federal Trade Commission's (FTC) Bureau of Competition, will leave the FTC, effective November 18, 2005. He will return to the Washington DC office of the law firm of Willkie Farr & Gallagher. See, FTC release.

More News

11/16. The Senate approved the conference report on HR 2862, the "Departments of Commerce and Justice, Science, and Related Agencies Appropriations Act, 2006", by a vote of 94-5. See, Senate Roll Call No. 329. The House approved this conference report on November 9, 2005, by a vote of 397-19. See, House Roll Call No. 581.

11/16. The House approved HR 1036, an untitled bill that makes technical corrections and changes to provisions of the Copyright Act regarding copyright royalty judges, and proceedings before copyright royalty judges. The bill is sponsored by Rep. Lamar Smith (R-TX) and Rep. Howard Berman (D-CA). The Senate has yet to approve this bill.

11/16. The U.S. Court of Appeals (8thCir) issued its opinion [6 pages in PDF] in Allsup v. Advantage 2000 Consultants, a case involving a claim of false advertising in violation of 15 U.S.C. § 1125(a)(1)(B). The Court of Appeals affirmed the District Court's grant of summary judgment to the defendant. The District Court also granted summary judgment on a claim of reverse passing off in violation of 15 U.S.C. § 1125(a)(1)(A). The plaintiff did not appeal on that issue. See, 15 U.S.C. § 1125. This case is Allsup, Inc. v. Advantage 2000 Consultants, Inc., et al., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 04-3376, an appeal from the U.S. District Court for the Eastern District of Missouri, Judge Jean Hamilton presiding.

11/16. Scott Hammond, Deputy Assistant Attorney General for Criminal Enforcement in the Department of Justice's (DOJ) Antitrust Division, gave a speech in Washington DC titled "An Update of the Antitrust Division's Criminal Enforcement Program".

11/16. The Department of Justice's (DOJ) Antitrust Division announced that it has closed its investigation of NASDAQ's proposed acquisition of Instinet Group. See, DOJ release.

Go to News from November 11-15, 2005.