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House to Take Up Tech Bills

December 15, 2012. The House floor schedule for Tuesday, December 18, 2012 includes consideration of three technology related bills, under suspension of the rules: Sen. Patrick Leahy's (D-VT) recently introduced "Theft of Trade Secrets Clarification Act", Rep. Bob Goodlatte's (R-VA) bill to amend the VPPA (without the SJC's ECPA amendments), and Rep. Lamar Smith's (R-TX) recently introduced patent bill (which addresses the post grant dead zone, allocation of user fees, and pre GATT patent applications, among other issues).

Patent Bill. First, the House is scheduled to consider HR 6621 [LOC | WW], an untitled bill that would make 15 changes to the "Leahy Smith America Invents Act" and the Patent Act.

Rep. Lamar SmithRep. Smith (at right) introduced this bill on November 30, 2012. There has been no hearing or markup for any of the sections of this bill.

The Congress enacted the AIA, HR 1249 [LOC | WW], earlier in this Congress. President Obama signed it into law on September 16, 2011. It is now Public Law No. 112-29.

This bill addresses the post grant dead zone issue. It addresses patent term adjustments. It would repeal 35 U.S.C. 373 regarding improper applicants for international PCT applications at the USPTO. It also addresses allocation of user fees, by amending 35 U.S.C. 42(c)(3).

This bill also pertains to pre GATT patent applications. It might have the effect of eliminating many of the several hundred of these pre June 7, 1995 applications.

See also, story titled "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012.

Theft of Trade Secrets Clarification Act. Second, the House will consider S 3642 [LOC | WW], the "Theft of Trade Secrets Clarification Act of 2012". Sen. Leahy and Sen. Herb Kohl (D-WI) introduced this bill on November 27, 2012. The Senate passed this bill, by unanimous consent, without debate, late on the same day.

This bill would amend the Economic Espionage Act, which is codified at 18 U.S.C. 1832, and which criminalizes theft of trade secrets. It is a response to the April 11, 2012 opinion of the U.S. Court of Appeals (2ndCir) in U.S. v. Aleynikov, App. Ct. No. 11-1126. It clarifies that theft of software source code can constitute a violation of Section 1882.

See also, story titeld "Senate Passes Theft of Trade Secrets Clarification Act" in TLJ Daily E-Mail Alert No. 2,477, November 28, 2012.

HR 2471 and Video Privacy. Third, the House will consider HR 2471 [LOC | WW], the "Video Privacy Protection Act Amendments Act of 2012". Rep. Goodlatte introduced this bill on July 8, 2011. The House Judiciary Committee (HJC) amended and approved this bill on October 13, 2011. The full House passed this bill on December 6, 2011.

See, story titled "House Judiciary Committee Passes Bill to Ease User Disclosure of Video Viewings in Social Media" in TLJ Daily E-Mail Alert No. 2,307, October 13, 2011.

The VPPA was enacted by the 100th Congress in 1988 just after the public debates and Senate hearings pertaining to the nomination of Judge Robert Bork to be a Justice of the Supreme Court, which involved disclosure of his video rental records. That bill was Public Law No. 100-68. It is codified at 18 U.S.C. 2710.

The VPPA provides that "A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person".

The purpose of current legislative proposals is to allow companies, such as Facebook, to operate a web site that discloses users' video rentals and recommendations with a one time opt-in procedure, rather than requiring consent every time the user wants to recommend a video.

However, the Senate Judiciary Committee (SJC) approved a much different version of HR 2471 on November 29, 2012. See, TLJ's HTML red line mark up of this bill showing changes made by the SJC on November 29.

The SJC approved a bill with different language for amending the VPPA. Sen. Dianne Feinstein (D-CA) offered the amendment containing changes to the section amending the VPPA.

But, more significantly, its version would also amend the Electronic Communications Privacy Act (ECPA) to require a warrant for accessing cloud stored e-mail. See, story title "Senate Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud Stored E-Mail" in TLJ Daily E-Mail Alert No. 2,479, November 30, 2012.

Late on December 14, the House Republican leadership release a House floor schedule for the week of December 17, without disclosing which version of HR 2471 would be considered. A spokesman for Rep. Goodlatte informed TLJ on December 15 that the House will consider a bill that contains only the VPPA amendments approved by the SJC on November 29. The House will not take up the ECPA language.

(Published in TLJ Daily E-Mail Alert No. 2,491, December 15, 2012.)