| McAfee Granted Patent
Related to Selling Software over the Internet |
7/24. The USPTO granted U.S.
Patent No. 6,266,774 to McAfee
titled "Method and system for securing, managing or
optimizing a personal computer." It discloses a
"system, method, and computer program product for
delivery and automatic execution of security, management, or
optimization software over an Internet connection to a user
computer responsive to a user request entered via a web
browser on the user computer."
McAfee P/CEO Srivats Sampath said in a release
on August 6 that "this patent further reinforces our
belief that the future lies in software applications being
delivered online as web services to users around the world.
This patent also reinforces our first mover advantage by
securing our foothold in this space." Sampath and others
are the inventors; McAfee is the assignee of the patent. |
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| GAO Releases Report on
On-Line Securities Trading |
8/6. The GAO
released a report
[PDF] titled "On-Line Trading: Investor Protections Have
Improved but Continued Attention Is Needed". The report,
which was prepared for Rep.
John Dingell (D-MI) and Rep. Ed Markey (D-MA),
addresses progress being made by broker dealer web sites
regarding investor privacy, trade execution, margin risk,
trading risk, and the potential for service disruptions. The
report found that the number of complaints, relative to the
number of on line trades, declined from 1999 to 2000.
The report also recommended that the SEC (1) "work with
the securities industry to establish a consistent and
meaningful measure for outages and delays and ensure that
broker- dealers maintain consistent records of system outages
and delays, and disclose the potential for service disruption
on their Web sites"; (2) "take steps to ensure
broker- dealers disclose additional information related to
investor protection on their Web sites"; and (3)
"monitor the extent to which broker- dealers accept OCIE
recommendations on disclosing trading risk, potential for
systems outages and failures, and protecting investor records
and information. If SEC finds that broker-dealers are not
incorporating such recommended practices, we recommend that
SEC's Acting Chairman consider further rulemaking in these
areas." |
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| Appeals Court Decisions |
8/6. The U.S.
Court of Appeals (3rdCir) issued its opinion
in Newton
v. Merrill Lynch, a case involving class
certification under FRCP
23 in cases involving allegations of violation of federal
securities laws.
8/6. The U.S.
Court of Appeals (1stCir) issued its opinion
in Yankee
Candle v. Bridgewater Candle, a case involving
claims of copyright infringement, trade dress infringement,
tortious interference, and deceptive trade practices. The
dispute involved candle fragrance labels. Affirmed. |
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| New Documents |
FCC: motion
for stay in NextWave v. FCC, 8/6 (HTML, TLJ).
GAO:
report
re on-line securities trading and investor protections, 8/6 (PDF,
GAO).
USCA:
opinion
in Newton v. Merrill Lynch re class certification in
securities litigation, 8/6 (HTML, USCA).
USCA:
opinion
in Yankee Candle v. Bridgewater Candle re copyright
infringement, 8/6 (HTML, USCA). |
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| FCC May Petition for Writ
of Certiorari in NextWave Case |
8/6. The FCC filed a motion
with the U.S.
Court of Appeals (DCCir) in the NextWave v. FCC.
The motion is titled "Motion to Stay the Mandate Pending
the Filing of a Petition for a Writ of Certiorari." It
states that the "Acting Solicitor General authorized the
FCC on August 6, 2001, to file a petition" for writ of
certiorari to review the Appeals Court's June 22 opinion
holding that the FCC is prevented from canceling NextWave's
spectrum licenses by the Bankruptcy Code. The FCC's motion
further requests that the U.S. Court of Appeals "stay
issuance of the mandate in this case pending the government's
filing of a petition for a writ of certiorari in the Supreme
Court."
Background. This is a continuation of the seemingly
never ending litigation deriving from the FCC's bungled
management of the C Block auctions. NextWave obtained
spectrum licenses at FCC auctions in 1996. The FCC permitted
NextWave to obtain the licenses then, and later make payment
under an installment plan, thus creating a debtor creditor
relationship between NextWave and the FCC. NextWave did not
make payments required by the plan, and filed a Chapter 11
bankruptcy petition. The FCC, which
usually acts as though the Communications Act of 1934 is the
only legal authority which constrains its actions, cancelled
the licenses. However, the FCC was blocked by the bankruptcy
court, citing § 525
of the Bankruptcy Code. The U.S. District Court (SNDY)
affirmed. The U.S.
Court of Appeals (2ndCir) issued its order reversing and
remanding the case on Nov. 24, 1999; it issued its opinion
explaining its reversal in May 2000. The FCC then re-
auctioned this spectrum to Verizon Wireless, Voice Stream and
other successful bidders, which intend to use it for third
generation wireless, and other, services.
Opinion of the DC Circuit. NextWave petitioned
the FCC to reconsider its cancellation of its licenses. The
FCC refused, and NextWave petitioned for review by the Court
of Appeals in the District of Columbia. The DC Circuit ruled
on June 22 that the 2nd Circuit had not already addressed
NextWave's bankruptcy claims. It wrote that the FCC is
prevented from canceling the spectrum licenses pursuant to
§ 525 of the Bankruptcy Code. It wrote that the FCC
"violated the provision of the Bankruptcy Code that
prohibits governmental entities from revoking debtors'
licenses solely for failure to pay debts dischargeable in
bankruptcy. The Commission, having chosen to create standard
debt obligations as part of its licensing scheme, is bound by
the usual rules governing the treatment of such obligations in
bankruptcy."
Chairman Powell. FCC Chairman Michael Powell
released a statement
in which he said that "I welcome the decision today by
the Justice Department to support our appeal of the NextWave
case to the Supreme Court. High Court review will protect the
integrity of the FCC's auctions program, which Congress has
chosen as the best method of assigning scarce and precious
spectrum resources to those that will put them to their most
productive use. Through this appeal, I also hope the Court
will clarify how the important public policy goals of the
Bankruptcy Code should interact with the equally important
public policy goal of ensuring that spectrum is used for the
benefit of the American people. The FCC's petition for a writ
of certiorari is due to be filed on September 22nd."
Consequences. The FCC's management of this spectrum,
and the resulting litigation, have created considerable
regulatory uncertainty, delayed the use of valuable spectrum,
and delayed the deployment of new technologies that might use
this spectrum. Moreover, even if the claims of NextWave and
the re-auction winners are settled, or resolved by the courts,
it is hypothetically possible that other communications
companies that did not participate in the auction will bring
legal challenges to the FCC's handling of this process. |
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| People and Appointments |
8/6. Paul Margie will become legal advisor to FCC
Commissioner Michael
Copps for spectrum and international issues, effective
August 20, 2001. Margie is currently Senior Commerce Counsel
for Sen. John
Rockefeller (D-WV), a senior member of the Senate Commerce
Committee. He is also an Adjunct Professor of Law at
Georgetown University (GU), where he co-teaches a course
titled Law
in Cyberspace. He previously worked at the Washington DC
law firm of Wiley, Rein &
Fielding, in its communications and technology law
practice groups. See, GU
bio.
8/3. The Senate confirmed Jon Huntsman to be a Deputy
United States Trade Representative. See, USTR
release. |
|
|
| Tuesday, August 7 |
10:00 AM. The U.S. Court of
Appeals for the Federal Circuit will hear oral argument in
Xerox v. 3Com, No. 00-1464, a patent infringement case
involving handwriting recognition software. Location:
Courtroom 402, 717 Madison Pl., NW, Washington DC.
10:00 AM. The U.S. Court of
Appeals for the Federal Circuit will hear oral argument in
Taiwan Semiconductor v. ITC, No. 01-1060. Location:
Courtroom 402, 717 Madison Pl., NW, Washington DC.
12:00 NOON. The USPTO's
Commissioner for Trademarks, Anne Chasser, will be available
online to answer questions from the agency's customers and the
public on issues related to the work of the USPTO. See, notice. |
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| Wednesday, August 8 |
| 1:00 PM. There will be a press conference titled
"Surveillance vs. Privacy." For more information,
contact David Saddler of the Security
Industry Association at 703-683-0276. Location: National Press Club, Murrow
Room, Washington DC. |
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|
| Thursday, August 9 |
9:30 AM. The FCC will hold a meeting. See, agenda.
Location: FCC, 445 12th Street, SW, Room TW- C305.The agenda
includes the following:
• A Third Notice of Inquiry concerning the
availability of advanced services pursuant to Section 706 of
the Telecom Act in preparation for its Third Report on the
Deployment of Advanced Telecommunications Capability to all
Americans. (CC Docket No. 98-146)
• The Commission will consider a Memorandum Opinion
and Order and Further Notice of Proposed Rule Making exploring
additional frequency bands below 3 GHz to support the
introduction of advanced wireless service, resolving in part
petitions for reconsideration of 2 GHz MSS band arrangements,
and addressing petitions for rulemaking concerning the 2 GHz
MSS and Unlicensed PCS bands.
9:30 AM. There will be a panel discussion titled
"Perspectives on China's Accession Into the WTO."
Location: National Press Club,
Washington DC. The speakers will be Rick Dunham (Business
Week), Pieter Bottelier (Harvard University), Will Martin
(World Bank), Don Phillips, and James Tsao (Journal of Asian
Economics). |
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