TLJ News from October 21-25, 2013

FCC Releases Tentative Agenda for November 14 Meeting

10/24. The Federal Communications Commission (FCC) released a tentative agenda for its event on November 14 titled "open meeting". The FCC is scheduled to adopt a Declaratory Ruling (DR) on foreign investment in U.S. based broadcasters, and a Report and Order (R&O) regarding 911 communications.

The FCC will also hold an event titled "open meeting" on Monday, October 28. The agenda includes adoption of a R&O and Further Notice of Proposed Rulemaking (FNPRM) on rural call completion, a R&O on interoperability in the lower 700 MHz band, and a R&O with rules for the 700 MHz spectrum licensed to the First Responder Network Authority. See, notice of meeting, and October 28 notice of prior adoption of interoperability item.

The FCC's tentative agenda for its November 14 event states that the FCC is scheduled to adopt a DR "to clarify the agency's policies and procedures in reviewing broadcast applications for transfer of control, or requests for declaratory ruling, pursuant to" 47 U.S.C. § 310(b)(4).

U.S. investors and trade negotiators have long urged other countries to reduce their barriers to U.S. investment in information and communications technology (ICT) companies, while at the same time U.S. statutes, and the FCC, Department of Justice (DOJ), and Committee on Foreign Investment in the U.S. (CFIUS), have imposed barriers to foreign investment in U.S. ICT companies.

FCC Commissioner Ajit Pai stated in a release that "I am very pleased that Chairwoman Clyburn has circulated an item to modernize the agency's approach to foreign investment in the broadcasting business. Over a year ago, I called for the elimination of the de facto ban on any foreign investment in a U.S. broadcast holding company that exceeds a 25 percent benchmark." See, Pai's speech of September 19, 2012, at pages 5-6.

Ajit PaiPai continued that "Under our rules, a foreign company can indirectly hold more than a one-quarter stake in our nation's largest wireless carriers, cable operators, cable programmers, and Internet backbone providers. Yet that company cannot own a similar interest in a single radio station in rural Kansas. This disparity makes no sense, especially considering the difficult financial circumstances facing many broadcasters. Now is the time for the Commission to revise this out-of-date restriction."

Section 310(b) provides as follows:

The tentative agenda also states that the FCC is scheduled to adopt a R&O "to improve the reliability and resiliency of 911 communications networks".

The tentative agenda also states that there will be two presentations. There will be one on "public-private initiatives seeking to boost broadband adoption and digital literacy", and another on "universal service reform implementation".

This meeting is scheduled for 10:30 AM on Thursday, November 14, 2013 in the Commission Meeting Room, Room TW-C305, 445 12th St., NW.

Obama's PR Office Releases Statement Regarding NSA Surveillance of Merkel

10/23. The German publication Der Spiegel published a series of articles that state, among other things, that "US intelligence spied on Chancellor Merkel's mobile phone". The White House new office released a statement on October 23 that admits no wrongdoing.

The statement does not state whether or not the US has monitored the communications German Chancellor Angela Merkel in the past. It only states that the US "is not monitoring and will not monitor the communications of Chancellor Merkel".

There have have been many disclosures about National Security Agency (NSA) surveillance activities since June of this year. President Obama and members of his administration have consistently defended NSA surveillance as necessary for fighting terrorism.

This statement, however, makes no attempt to justify NSA surveillance that targets the leaders of friendly nations.

Representatives Introduce Bill to Restrain Patent Assertion Entities

10/23. Rep. Bob Goodlatte (R-VA) and others introduced HR 3309 [LOC | WW | PDF], the "Innovation Act", a bill that would address abusive practices by patent assertion entities (PAEs), and other patent subjects. See also, the House Judiciary Committee's (HJC) bill summary and release.

This bill does not attempt to define or classify PAEs, non-practicing entities (NPE), patent trolls, or any other categories. Rather, it would impose heightened pleading requirements upon all who assert patents by way of complaint, counterclaim or cross claim. It would shift fees to the nonprevailing party in patent actions. It would impose certain limitations upon discovery in patent actions.

It would facilitate intervention by manufacturers in infringement claims against their customers, and provide for stays of the infringement claims against the customers, if certain conditions are met. It would also add a new subsection on joinder.

Both in pleading, and outside of litigation, it would require more disclosure of ownership interests in patents.

The bill is also a vehicle for amendments to patent law and other provisions that are not related to abusive practices of patent assertion entities.

One provision would touch on copyright. It contains an amendment to the bankruptcy statute that would protect all  intellectual property licenses in bankruptcy proceedings.

See also, related story in this issue titled "Summary of the Innovation Act".

This is just one of many pending bills directed at abusive practices by some PAEs, which the sponsors describe with the terms "trolls" and "extortion". See, story titled "Summary of Pending Patent Reform Bills" in TLJ Daily E-Mail Alert No. 2,592, August 29, 2013.

However, this bill is likely to be the focus of legislative efforts in the House.

The bill was referred to the HJC. There is not yet a companion bill in the Senate.

The Republican original cosponsors are Rep. Lamar Smith (R-TX), Rep. Howard Coble (R-NC), Rep. Jason Chaffetz (R-UT), Rep. Spencer Bachus (R-AL), Rep. Tom Marino (R-PA), Rep. Blake Farenthold (R-TX), and Rep. George Holding (R-NC). All are members of the HJC.

The Democratic original cosponsors are Rep. Peter DeFazio (D-OR), Rep. Zoe Lofgren (D-CA), and Rep. Anna Eshoo (D-CA). Of these three, only Rep. Lofgren is a member of the HJC.

Rep. Goodlatte also announced that the HJC will hold a hearing on Tuesday, October 29.

Reaction. Matt Levy of the Computer and Communications Industry Association (CCIA) stated in a release that "We are very pleased that the bill is a serious effort to address the full scope of the problem. This bill would make it less profitable for patent trolls to sue, would offer tools to those unfairly targeted, including end users, and improve patent quality."

He added that "Patent trolls predominantly use poor quality business method patents to sue non-tech companies and start-ups. That’s why we also appreciate the Chairman’s focus on an alternative to litigation by making the covered business method review program more effective. The bill gives the PTO a chance to address more bad patents without changing the standard for what’s patentable or risking companies’ strong patent portfolios."

Gary Shapiro, head of the Consumer Electronics Association (CEA), praised the bill in a release. He said that "Frivolous patent litigation is a massive problem and it is getting worse. Patent trolling had ballooned into a billion dollar industry dedicated to punishing innovators, undermining the integrity of the patent system, killing jobs and damaging our economy. This bill contains smart and targeted reforms that will help promote continued innovation in the U.S. and make life difficult for those who seek to abuse our patent system."

Matt Reid of the Business Software Alliance (BSA) stated in a release that this bill "includes important reform measures that will reduce the financial incentive for bad actors to engage in abusive patent litigation. Those proposals enjoy broad-based support among stakeholders".

But, he added that "we are concerned that proposed language to provide customer stays could inadvertently create loopholes that bad actors will use to game the system. Pressing forward with these types of measures would unravel political consensus and hurt the chances of passing needed legislation. Finally, we are concerned that requiring the Patent and Trademark Office to change the way it interprets patent claims in review proceedings would benefit predatory litigants rather than deter them."

He stated that the provisions that have broad support include fee shifting, heightened pleading requirements, and discovery limitations.

Summary of the Innovation Act

10/23. The following is a summary of HR 3309 [LOC | WW | PDF], the "Innovation Act", introduced in the House on October 23, 2013.

Heightened Pleading Requirements. The bill would add a new Section 281A to Titled 35 titled "Pleading requirements for patent infringement actions". Currently, 35 U.S.C. § 281 does nothing more that create a private right of action for infringement. It provides in full that "A patentee shall have remedy by civil action for infringement of his patent."

The bill would require a party alleging patent infringement to identify each allegedly infringed patent, and every allegedly infringed claim of each such patent. The bill also sets out further information that must be included regarding the alleged infringement.

The bill contains heightened pleading requirements that not only would require pleading the claim with greater particularity than normal pleading requirements, but which would also require pleadings to include information not necessary to put other parties on notice of the claim.

For example, the bill would require the disclosure, via pleading, of other complaints that assert the same patents. The bill would also require disclosure, via pleading, of information regarding whether the patent asserted is a standards essential patent, and whether any government has imposed licensing requirements with respect to that patent. The bill would also require a description of the principal business of the party alleging infringement.

Fee Shifting. This bill would replace the current Section 285 with a fairly straightforward fee shifting section.

Currently, 35 U.S.C. § 285 provides that "The court in exceptional cases may award reasonable attorney fees to the prevailing party." That is, each party ordinarily pays its own attorneys. And, except in "exceptional cases", the winner cannot recover its attorneys fees at the conclusion of the case. Fee shifting could have a significant impact, because a party often pays millions of dollars in legal fees to pursue a patent case to judgment.

First, this bill would replace this with the following: "The court shall award, to a prevailing party, reasonable fees and other expenses incurred by that party in connection with a civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, unless the court finds that the position of the nonprevailing party or parties was substantially justified or that special circumstances make an award unjust."

It adds that "If a nonprevailing party is unable to pay reasonable fees and other expenses ... the court may make the reasonable fees and other expenses recoverable against any interested party joined pursuant to section 299(d)." (The next item in the bill creates this new subsection 299(d).)

Also, any patent asserting party who "subsequently unilaterally extends to such other party a covenant not to sue for infringement with respect to the patent or patents at issue, shall be deemed to be a nonprevailing party".

These changes would only apply to actions filed after enactment. Also, unlike some other legislative proposals, this bill contains no provisions that would require the posting of a bond.

Joinder. The bill would amend 35 U.S.C. § 299, which pertains to joinder of parties, by adding a new subsection.

This new subsection would enable a party defending against a claim of patent infringement "to join an interested party if such defending party shows that the party alleging infringement has no substantial interest in the patent or patents at issue other than asserting such patent claim in litigation."

Discovery Limitations. This bill would add a new Section 299A to Title 35. Proponents of this legislation argue that discovery burdens are asymmetric, with parties defending against infringement claims incurring more costs and inconveniences to comply with discovery requests. Hence, they argue, discovery processes can be abused to burden or harass such defendants. This, in turn, creates a perverse incentive to settle meritless claims.

This section provides that "if the court determines that a ruling relating to the construction of terms used in a patent claim asserted in the complaint is required, discovery shall be limited, until such ruling is issued, to information necessary for the court to determine the meaning of the terms used in the patent claim, including any interpretation of those terms used to support the claim of infringement". However, the new section also allows the court discretion to allow more discovery.

Stays of Actions Against Customers. This bill implies that manufacturers may intervene in infringement claims against their customers. It further provides for stays of the infringement claims against the customers, if certain conditions are met. See, Section 5.

The bill does not expressly create a right of intervention for manufacturers whose customers have been sued. The bill does not even reference intervention or Rule 24 of the Federal Rules of Civil Procedure. But, the sponsors' bill summary states that the bill "Allows a manufacturer to intervene in a suit against his customers", the interaction of Section 5 of the bill and Rule 24 implies a right to intervene.

Section 5 of the bill provides this:

Transparency of Patent Ownership. Currently, 35 U.S.C. § 290 provides in full that "The clerks of the courts of the United States, within one month after the filing of an action under this title shall give notice thereof in writing to the Director, setting forth so far as known the names and addresses of the parties, name of the inventor, and the designating number of the patent upon which the action has been brought. If any other patent is subsequently included in the action he shall give like notice thereof. Within one month after the decision is rendered or a judgment issued the clerk of the court shall give notice thereof to the Director. The Director shall, on receipt of such notices, enter the same in the file of such patent."

This bill would expand Section 290 to require further disclosures. The "plaintiff shall disclose" to the U.S. Patent and Trademark Office (USPTO), as well as to the District Court and "each adverse party", the identity of the "assignee of the patent or patents at issue", any "entity with a right to sublicense or enforce the patent or patents at issue", any "entity, other than the plaintiff, that the plaintiff knows to have a financial interest in the patent or patents at issue or the plaintiff", and the "ultimate parent entity of any assignee identified".

These disclosure requirements would apply only to a plaintiff asserting a patent. There is no impact on patent assertions made by counter-claim or cross-claim.

The obligations to make disclosures to the USPTO are ongoing. These disclosure to the USPTO requirements will cause the USPTO to incur costs. Hence, the bill also allows the USPTO to write rules that impose disclosure fees.

Provisions Not Related to Restraining Abusive Patent Assertion Entities. The remainder of the bill, three fifths of its pages, are devoted to subjects other than dealing with abusive litigation brought by patent trolls.

The bill would repeal 35 U.S.C. § 145, which enables an unsuccessful patent applicant to bring an action in the District Court to obtain a patent.

The bill would amend 35 U.S.C. § 325(e)(2) by striking the clause "or reasonably could have raised".

The bill would amend 35 U.S.C. § 316(a) regarding inter partes review, and 35 U.S.C. § 326(a) regarding post grant review.

The bill would add a new Section 106 to Title 35 regarding "Prior art in cases of double patenting". The sponsors' summary states that this "codifies the double-patenting doctrine and applies it to first to file patents, controlling the effects of exceptions to prior art that permit a patentee to obtain multiple patents for what is basically the same invention and then sell those patents to different parties, requiring others to obtain multiple licenses from multiple parties to practice the invention".

The bill would amend the America Invents Act (AIA) provision regarding covered business method patent reviews.

The sponsors' summary states that this "codifies PTO's current practices that are in line with AIA legislative intent, and eliminates the opportunity for gamesmanship by applying the program to all first to invent patents."

It also "Clarifies several aspects of the definition of ``covered business method patent,´´ codifying the interpretation of the words ``practice, administration, or management of a financial product or service´´ to that adopted by the PTAB decision in SAP v. Versata."

The bill would amend 35 U.S.C. § 154(b)(1)(B) to provide a clarification of limits on patent term adjustments.

The bill makes this statement regarding all claims filed after enactment of the bill: "The Federal interest in preventing inconsistent final judicial determinations as to the legal force or effect of the claims in a patent presents a substantial Federal issue that is important to the Federal system as a whole."

The bill would require the USPTO to conduct several studies, including a study on secondary market oversight for patent transactions to promote transparency and ethical business practices, a study on patent owned by the federal government, and a study on patent quality and access to the best information during examination.

The bill also contains an amendment to Title 11 to protect intellectual property licenses in bankruptcy proceedings.

Things Not in this Bill. Several things are not in the bill. It does not address abusive pre-litigation practices, such as unfair or deceptive demand letters. See, related story in this issue titled "Commentary: Patent Reform, Demand Letters and Non-Litigation Tactics".

This bill does not impose any requirement to post a bond.

This bill does not address actions before the U.S. International Trade Commission (USITC) for exclusion orders.

Commentary: Patent Reform, Demand Letters and Non-Litigation Tactics

10/23. HR 3309 [ LOC | WW | PDF], the "Innovation Act", is focused upon litigation procedure. In contrast, proponents of legislation have spent the last few years complaining about the pre-litigation tactics of patent assertion entities (PAEs). There is a disconnect.

As is often the case in the legislative process, there is a partial mismatch between the undesirable activities that proponents of legislation present to the Congress and public, and the activities that would be regulated by the actual legislation.

For example, the Consumer Electronics Association (CEA), which has applauded this bill, hosted an event for technology reporters on October 7 at which small start up businesses related their experiences with PAEs. The emphasis was on demand letters and other pre-litigation tactics, and their effect upon small start-ups, and the innovation that they provide.

The CEA's Michael Pettricone said that patent trolls are targeting "end user consumers and coffee shops" who know little about the patent claim or patent law.

Todd Moore, the founder of a three person company named TMSOFT, said at that event that he had received a demand letter and other communications, and was eventually sued, on a meritless claim. He added that he had obtained pro bono counsel, and that the plaintiff dismissed the action. He said that start ups are afraid to publish demand letters for fear that they will be sued in retaliation, and cannot publish if they settle, because settlements include non-disclosure clauses. Another speaker said that start ups also fear the impact of demand letters upon funding.

Similar events in the past year have presented speakers who have focused on pre-litigation tactics. Their narrative is that patent trolls send out large volumes of form demand letters to end users of products that they claim infringe their patent. The demands often do not put the targets on notice of what patent has been infringed, or how. Hence, the recipients have no way of evaluating the claim. Some claims are meritless. Others are fraudulent. The claimants set settlement offers below what it would cost for the targets to hire patent counsel to investigate and advise them. Hence, many pay demands without ever learning if there was any merit to the claim, and without disclosing their ordeal to others.

Rep. Bob Goodlatte (R-VA), the sponsor of the bill, stated at a news conference on October 23 that the bill does deal with pre-litigation tactics. He did not elaborate.

He might have been referring to Section 7 of the bill. There is vague and toothless language about the USPTO developing "educational resources for small businesses to address concerns arising from patent infringement", about the USPTO ombudsman engaging in "outreach", and about the USPTO putting online information about pending litigation.

However, nothing in the bill directs, or even authorizes, the USPTO to take any kind of action in connection with pre-litigation patent assertion tactics. The USPTO is not even directed to study the issue. Nor is the USPTO given any authority to obtain copies of demand letters from those asserting patent infringement.

Regulation of pre-litigation communications is already a fixture of the American legal system. Lawyers are regulated by state bar associations, which impose ethical limitations upon their practices, including communications with adverse parties.

State and federal statutes, enforced by private rights of action and government consumer protection agencies, limit the communications of, among others, debt collectors. See for example, the federal Fair Debt Collection Practices Act (FDCPA), codified at 15 U.S.C. § 1601, et seq., which prohibits all false, deceptive, or misleading representations, abuse, and unfair practices.

The Congress could enact a Fair Patent Assertion Practices Act. Alternatively, it could simply amend 15 U.S.C. § 45, to enumerate proscribed unfair or deceptive patent assertion practices.

Perhaps it is the case the mom and pop owners of coffee shops and other small business end users make more sympathetic candidates for protection by the Congress than large companies that can afford teams of patent lawyers. But, it may be the organized industries whose interests are to be protected by this legislation.

Another reason for not addressing pre-litigation tactics in this bill may relate to the jurisdiction of committees, and attempting the increase the likelihood of enactment of a bill. The HJC and the Senate Judiciary Committee (SJC) have many members who would like to enact a bill. They also have jurisdiction over both intellectual property law and judicial procedure. Bills such as HR 3309 fall squarely within the jurisdiction of these two committees.

In contrast, pre-litigation tactics are not necessarily a matter of IP law or judicial procedure. Legislation directed at demand letters and other communications would be in the nature of prescription of fraudulent and deceptive practices in interstate commerce, which might lie within the jurisdiction of the House Commerce Committee (HCC) and Senate Commerce Committee (SCC). Moreover, the U.S. Patent and Trademark Office (USPTO), which is overseen by the HJC and SJC, is not an anti-fraud enforcement agency. It lacks enforcement capabilities. The Federal Trade Commission (FTC), which is overseen by the HCC and SCC, is an anti-fraud enforcement agency with depth and experience in brining enforcement actions.

Moreover, in the past two decades, with passage of the Telecommunications Act of 1996 and the development of new information and communications technologies, the HCC has aggressively expanded its turf, at the expense of the HJC, and free markets. TLJ first wrote about this jurisdictional struggle in 1999. See, story titled "House Commerce and Judiciary Committees Vie for High Tech Leadership", June 15, 1999.

Members of the HJC are loath to take any action that would diminish their authority over what they see as an intellectual property matter solely within their committee's jurisdiction. Including pre-litigation provisions into a bill would risk sharing jurisdiction over the bill, and loosing turf to the HCC.

There is also the matter that the HCC and HJC are responsive to different sets of organized interests, and hence, if both were tasked with writing a bill, they would likely produce different products. The probability of enactment of any bill would be decreased.

One legislative tactic available to Rep. Bob Goodlatte (R-VA), the Chairman of the HJC and sponsor of HR 3309, would be to report a bill out of the HJC that contains no provisions that would give the HCC a claim to jurisdiction, but then offer an amendment on the House floor that addresses fraudulent and deceptive demand letters, but in a manner that does not involve the FTC Act or the FTC.

Jurisdictional considerations also provide a reason for addressing patent actions brought in the U.S. District Court, but not patent infringement based exclusion actions brought in the U.S. International Trade Commission (USITC). The House Ways and Means Committee (HWMC) has jurisdiction over trade issues. HR 3309 does nothing to limit abusive actions by PAEs in the USITC for exclusion orders.

Representatives Introduce Bill to Limit FDA Regulation of Medical Software

10/22. Rep. Marsha Blackburn (R-TN) and others introduced HR 3303 [LOC | WW | PDF], the "Sensible Oversight for Technology which Advances Regulatory Efficiency Act of 2013" or "SOFTWARE Act", a bill to limit regulation of certain medical software by the Food and Drug Administration (FDA).

The FDA has long held statutory authority to regulate medical devices pursuant to the Federal Food, Drug, and Cosmetic Act, which is codified at 21 U.S.C. § 301 et seq.

Recently, the FDA has been regulating medical software, including software that runs on mobile devices that are attached to biometric devices, such as blood pressure monitors and cameras, that enable consumers to collect data, and for doctors to remotely conduct parts of examinations.

Proponents of this legislation argue that FDA regulation is inhibiting medical innovation.

The bill would end FDA regulation of data collection software, but maintain regulation of software involved in changing the body.

This bill would address only the FDA regulatory regime. There are other regulatory barriers to the use of medical software that this bill does not address, such as territorial licensing of medical doctors.

Bill Summary. This bill adds to the Act three definitional categories: "medical software", "clinical software", and "health software". It also amends the regulatory regime of the Act.

The bill provides that "medical software" would remain subject to the FDA's current regulatory regime, but that "clinical software" and "health software" shall not be subject to regulation under the Act. However, the bill adds that it is the sense of the Congress that "the President and the Congress should work together to develop and enact legislation that establishes a risk-based regulatory framework for such clinical software and health software that reduces regulatory burdens, promotes patient safety, and fosters innovation."

The bill provides that software that is involved in changing the body would be regulated "medical software". The bill provides that software that collects data from the body would be unregulated "clinical software" or "health software", depending on whether it intended for use in a clinical or consumer setting. The bill adds that "medical software" also includes software intended for use by consumers that makes recommendations for clinical action.

More specifically, the bill defines "medical software as software that is either "intended to be marketed to directly change the structure or any function of the body of man" or is "intended to be marketed for use by consumers and makes recommendations for clinical action that ... includes the use of a drug, device, or procedure to cure or treat a disease or other condition without requiring the involvement of a health care provider ... and ... if followed, would change the structure or any function of the body of man".

The bill provides that "clinical software" is software used by health care providers in clinics and other health care facilities to obtain data.

More specifically, the bill provides that "clinical software" is "clinical decision support software ... including any associated hardware and process dependencies ... that ... captures, analyzes, changes, or presents patient or population clinical data or information and may recommend courses of clinical action, but does not directly change the structure or any function of the body of man ... and ... is intended to be marketed for use only by a health care provider in a health care setting".

The bill provides that "health software" includes several categories. One is software intended for use outside of the clinical setting to collect data.

Sponsors. The bill was referred to the House Commerce Committee (HCC). The original cosponsors are Rep. Gene Green (D-TX), Rep. Phil Gingrey (R-GA), Rep. Diana DeGette (D-CO), Rep. Greg Walden (R-OR), and Rep. G. K. Butterfield (D-NC). All are members of the HCC.

Rep. Blackburn stated in a release that "Our legislation takes the necessary steps to protect technological innovation that is filtering into growth sectors like health care. This bill would provide the FDA with the tools it needs to effectively protect consumers who use high risk technologies, while allowing the innovation of low risk technologies to continue without being caught up in the expensive and time consuming FDA approval process all while protecting patient safety."

Rep. Gingrey, who is also a medical doctor, stated in this release that "Health care delivery will continue to be impacted by the advent of new technology, specifically with health care software. This bill provides innovators clear regulatory guidelines that allows for breakthrough medical advancements and innovation."

Panel Discusses Medical Apps and FDA Regulation

10/22. The Institute for Policy Innovation (IPI) hosted a conference on Capitol Hill on October 22, 2013 that included a technology demonstration and a panel discussion regarding medical apps that run on smart phones, and connect to other devices, that facilitate the collection of health data, and the provision of health care.

First, Michael Batista provided a technology demonstration, in which volunteers used an Apple iPhone loaded with various apps, and a blood pressure cuff, and other devices, to collect data about themselves.

Batista stated that blood pressure, camera, ultrasound, stethescope, EKG, and other devices, connected to smart phones can turn patients into their own data collectors, and enable the transfer of data to clinicians, and allow clinicians to spend less time collecting data when patients make in person visits. These apps can also facilitate the process of data aggregation, and further patient education.

Second, a panel made up of Merrill Matthews, Jim Bialick, Joel White discussed legal and regulatory issues. They stated that the main problem is that the Food and Drug Administration (FDA) regulates these apps as medical devices.

This is problematic, they explained, because most of these apps are being developed by start up companies, and the FDA's approval process takes much longer that either the development process, or investment cycles. Hence, the regulatory process in inhibiting innovation in these apps.

Bialick also said that territorial licensing of doctors presents a barrier. That is, a doctor licensed in one state cannot examine a patient located in another state via Skype.

This program did not address apps associated with biometrics not related to the provision of health care.

TLJ asked Batista after the program about apps for polygraph devices. He said that there is not now a commercially available polygraph app, but work is underway.

Bill Would Expand FCC E-Rate Subsidy Program to Cover More Health Services Providers

10/22. Rep. Gregg Harper (R-MS) and others introduced HR 3306 [LOC | WW], the "Telehealth Enhancement Act of 2013", on October 22, 2013.

The bulk of this bill contains amendments to the Social Security Act to promote the use of telehealth under the government's Medicare and Medicaid programs.

Section 3 of the bill would amend 47 U.S.C. § 254, which is the statute which gives the Federal Communications Commission (FCC) authority to operate universal service tax and subsidy programs. Subsection (h) pertains to "Telecommunications services for certain providers", and authorizes the FCC to tax any "telecommunications carrier" to provide subsidies for "telecommunications services" of certain schools and libraries and rural health care clinics and certain other health care providers.

This bill would expand the list of health care providers eligible for subsidies. It would add "ambulance providers and other emergency medical transport providers", "health clinics of elementary and secondary schools and post-secondary educational institutions", and "sites where telehealth services are provided".

The bill would also amend Subsection 254(h)(2) by adding the parenthetical clause shown below in red:

The original cosponsors of this bill are Rep. Mike Thompson (D-CA), Rep. Devin Nunes (R-CA), and Rep. Peter Welch (D-VT).

All of the sponsors of the bill represent districts with rural regions. Rep. Harper represents much of the state of Mississippi. Rep. Thompson represents a district in northern California. Rep. Nunes represents parts of the San Joaquin Valley. Rep. Welch represents the entire state of Vermont.

The bill was referred to the House Commerce Committee (HCC) and House Ways and Means Committee (HWMC). Rep. Harper and Rep. Welch are members of the HCC. Rep. Thompson and Rep. Nunes are members of the HWMC.

UK MP Urges Criminal Prosecution of the Guardian

10/22. Julian Smith, a Member of the United Kingdom House of Commons, gave a speech in the Parliament in which he discussed possible criminal prosecution of the Guardian, which has published news stories about US and UK surveillance activities, based in part upon information that it obtained from Edward Snowden. See, Hansard, October 22, 2013, at Column 67WH.

He said that while US National Security Agency (NSA) "spying ... may have been outwith the reach of Congress", the UK's Government Communications Headquarters (GCHQ) has broken no laws.

He also said that "The Terrorism Act is clear about the illegality of communicating information about our intelligence staff and, specifically, GCHQ. The Official Secrets Act is equally clear about the illegality of communicating classified information that the recipient knows, or has reasonable cause to believe, to be to the detriment of national security."

"Last week, I wrote to the Metropolitan Police Commissioner to ask him to investigate whether The Guardian has breached those two Acts. I urge the Minister to do everything possible to ensure that the police expedite their investigation. In particular, I ask him to ensure that The Guardian has been asked for a decrypted copy of all files to which it has access, so that we may protect our agents and operations."

The Terrorism Act 2000 at Section 58A provides in part that "A person commits an offence who ... elicits or attempts to elicit information about an individual who is or has been ... a member of any of the intelligence services ... which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or ... publishes or communicates any such information."

See also, the Official Secrets Act 1989.

Smith continued that "For the sake of Britain’s national security and for those who protect it, we must pursue the issue that we have discussed today. If we do not, we risk grave consequences, major risks for those who seek to protect us and the setting of a terrible precedent -- that hiding behind the cloak of journalism gives carte blanche to risk the state’s most important secrets, free of consequence and outside the law. In an age of the internet, blogging and self-publishing, that is a serious precedent to set."

Supreme Court Denies Cert in Case Against Data Broker

10/21. The Supreme Court denied certiorari in Johnson v. West Publishing Company, a class action case against a data broker that acquired and resold drivers license information acquired from states. See, Orders List [12 pages in PDF] at page 3.

This lets stand the April 9, 2013 opinion [10 pages in PDF] of the U.S. Court of Appeals (8thCir), which held for the data broker.

The plaintiff, Marcy Johnson, filed a complaint in the U.S. District Court (WDMo) against West Publishing Company alleging violation of the Driver's Privacy Protection Act (DPPA), which is codified at 18 U.S.C. §§ 2721–2725, in connection with the acquisition, aggregation and sale of personal information. She also sought class action status.

The District Court certified the class, and held that the the DPPA does not permit a reseller of personal information, such as West, to obtain driver's license information from a state or third party when the reseller's only purpose is to resell the information to other third parties. West appealed.

The Court of Appeals reversed, relying upon its December 15, 2011 opinion in Cook v. ACS State & Local Solutions, 663 F.3d 989, which was decided after the District Court's ruling.

The Court of Appeals held in Cook that "Section 2721(c) explicitly permits the resale of drivers' information, and it does not require that resellers must first use the information themselves. We hold that Plaintiffs cannot establish a DPPA violation by alleging that Defendants obtained personal information with the sole purpose of selling it to third parties who have permissible section 2721(b) uses for the information."

This case is Marcy Johnson v. West Publishing Company, Supreme Court of the U.S., Sup. Ct. No. 13-218, a petition for writ of certiorari to the U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 12-1176. The Court of Appeals heard an appeal from the U.S. District Court for the Western District of Missouri, D.C. No. 2:10–CV–04027–NKL.

Supreme Court Denies Certiorari in Internet Search Cases

10/21. The Supreme Court denied certiorari in two cases involving internet search providers, letting stand lower court judgments for the search providers.

On October 21, the Supreme Court denied certiorari in Neely v. FCC, a pro se case against the Federal Communications Commission (FCC), Microsoft and Google related to image search results. See, Orders List [12 pages in PDF] at page 9.

The confused complaint failed to articulate a legal theory. However, it alleged that Google's and Microsoft's search engines returned results that attributed nude images to Neeley.

TLJ conducted a Google images search with the name Curtis Neeley. The search results included no indecent pictures. However, Google did return an image of Eric Schmidt in a business suit.

The U.S. District Court (WDArk) issued its opinion [13 pages in PDF] on February 15, 2013 dismissing the complaint for failure to state a claim. The U.S. Court of Appeals (8thCir) issued its one page opinion on June 17, 2013 affirming the District Court.

This case is Curtis Neeley v. FCC, et al., Supreme Court of the U.S., Sup. Ct. No. 13-6502, a petition for writ of certiorari to the U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 13-1506. The Court of Appeals heard an appeal from the U.S. District Court for Western District of Arkansas, D.C. No. 12-5208.

On October 7, the Supreme Court denied certiorari in Stayart v. Google, a state law misappropriation case involving internet search providers. See, October 7 Orders List [94 pages in PDF] at page 14.

This lets stand the March 6, 2013 opinion of the U.S. Court of Appeals (7thCir), which affirmed the judgment of the U.S. District Court (EDWisc), which dismissed the complaint for failure to state a claim.

Bev Stayart filed a complaint that alleged violation of Wisconsin Statute § 995.50(2)(b), which protects an individual’s right of privacy by creating a private right of action for misappropriation of one's name without consent to generate financial revenue.

She alleged that when one enters the term "bev stayart" into Google's search box, the list of suggested complete search phrases is "bev stayart levitra", and that when one selects this suggested search, Google's paid placement advertising program produces a link to the commercial web site for the erectile dysfunction drug named Levitra.

The claim arises under state law. Hence, the District Court and Court of Appeals applied the law of the state of Wisconsin. The Court of Appeals wrote that the claim fails under both Wisconsin's public interest exception and the incidental use exception. That is, Wisconsin case law recognizes a newsworthiness or public interest exception to its misappropriation law, as well as an incidental use exception, and Google's use of "bev stayart" falls within both such exceptions.

This case is Beverly Stayart v. Google, Supreme Court of the U.S., Sup. Ct. No. 12-1417, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 11-3012. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Wisconsin, D.C. No. 2:10-cv-00336.

FCC Revises Dates and Deadlines for H Block Auction

10/21. The Federal Communications Commission (FCC) rescheduled Auction 96, for H block licenses in the 1915-1920 MHz and 1995-2000 Mhz bands, from January 14, 2014 to January 22, 2014. See, October 21 Public Notice (DA 13-2033) that announces rescheduling.

The FCC explained that the reason for these revisions is that FCC "operations were suspended for a 16-day period from October 1 through October 16, 2013, due to a Government-wide lapse in funding".

See also, September 13, 2013 document (DA 13-1885) titled "Notice and Filing Requirements, Reserve Price, Minimum Opening Bids, Upfront Payments, and other Procedures for Auction 96".

This proceeding is AU Docket No. 13-178.

Revised Dates and Deadlines for H Block Auction
  Old New
Auction tutorial available online October 23 November 4
Window opens for filing Short-Form Application (FCC Form 175) 12:00 NOON on Oct. 23 12:00 NOON on Nov. 4
Deadline to file Short-Form Application 6:00 PM on Nov. 5 6:00 PM on Nov. 15
Deadline for upfront payments 6:00 PM on Dec. 11 6:00 PM on Dec. 18
Mock auction January 10 January 17
Auction begins January 14 January 22

Police Convention Focuses on Social Media and Other ICT Topics

10/21. The International Association of Chiefs of Police (IACP) is holding its five day annual conference in Philadelphia, Pennsylvania. The event features numerous speeches, educational programs, and panels. This year's agenda is loaded with law enforcement related information and communications technology (ICT) subjects. See, conference web site.

The leading topics include the use of social media (to communicate with the public, to collect data, and to conduct investigations), cloud computing, and the management and use of data. Also, drones are now on the agenda.

Traditional ICT topics, such as computer crimes, cyber security, intellectual property crimes, law enforcement intercepts, 911, location surveillance mandates, CALEA, spectrum allocation, and building a broadband communications network, feature less at this year's convention.

The social media events include the following:

The cloud computing events include the following:

The events related to the management and use of data include the following:

The communications, 911, and intercept related events include the following:

While the FBI has advocated expanding the Communications Assistance for Law Enforcement Act (CALEA) regime, and the Silicon Valley delegation in the House is pressing the Federal Communications Commission (FCC) to impose further location detection mandates, these topics are not on the agenda for this conference.

There is no event on surveillance, other than the above listed event on wiretaps, and another dealing with video surveillance cameras.

The cyber security events include the following:

There is no event related to investigating computer crimes. However, the Computer Crime and Digital Evidence Committee has a meeting.

Other ICT related events include the following:

Finally, there are two events related to the new topic of drones: