| Senate Begins Debate on
Export Administration Act |
9/4. The Senate returned from its August recess, and began
debate on S
149, the Export Administration Act of 2001. The bill is a
major overhaul of export control laws. It passed the Senate Banking
Committee on March 22, 2001, by a vote of 19 to 1. It
would ease restraints on the export of most dual use products,
such as computers and software. However, it would raise
penalties for violation of remaining prohibitions. It would
also repeal provisions of the 1998 National Defense
Authorization Act which require the President to use MTOPS
to set restrictions on the export of high performance
computers.
The bill is sponsored by Sen.
Mike Enzi (R-WY). It is supported by Sen. Paul Sarbanes
(D-MD), the Chairman of the Senate Banking Committee, Sen.
Phil Gramm (R-TX), the ranking Republican on the Committee,
and by President Bush. However, it is opposed by a small
faction in the Senate led by Sen. Fred Thompson (R-TN), Sen.
John Warner (R-VA), and Sen. Richard Shelby (R-AL).
The Senate defeated, by a vote of 74 to 19, an amendment
offered by Sen. Fred
Thompson (R-TN) that would have increased the power of
agencies to delay license applications for an additional 60
days. This amendment would have allowed reviewing agencies to
extend the time limits on reviewing export license
applications if they determined that "due to the
complexity of the analysis" or "because of the
potential impact on the national security or foreign policy
interests of the United States" a further delay is
warranted. Under current law, and S 149, an exporter
wishing to export an item on a control list must apply for a
license. The application must be sent to the Secretary of
Commerce, who then refers it to other interested departments.
The agencies must provide a recommendation to approve or deny
the license within 30 days of that referral. S 149 also
contains six specific circumstances in which further time may
be taken. Sen. Enzi argued that passage of the Thompson
amendment would "significantly undermine the discipline
of the entire review process, and effectively create
gridlock".
Secretary of State Colin Powell, Secretary of Defense Donald
Rumsfeld, and Secretary of Commerce Donald Evans wrote a
letter to Sen. Trent Lott
(R-MS), the Republican Majority Leader, urging passage of the
bill. "President Bush strongly supports the bill as
passed by the Senate Banking Committee and wants to move
forward in this important area. We urge you to support S.
149," the three wrote.
The current Export Administration Act was scheduled to lapse
on August 20. However, President Bush issued an Executive
Order on August 17 extending it. President Bush also wrote
a letter
to the Speaker of the House of Representatives and the
President of the Senate regarding this decision. |
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| Sen. Gramm Announces
Retirement |
9/4. Sen. Phil Gramm
(R-TX) announced that he will not run for re-election in the
2002 election. Sen. Gramm is the ranking Republican on the Senate Banking
Committee. He has been involved in many technology related
debates.
He is a strong supporter of the Export Administration Act of
2001, which is currently being debated by the full Senate. His
retirement may open the way for Sen. Richard Shelby
(R-AL) to become either ranking Republican or Chairman of the
Committee. Sen. Shelby is an an opponent of the bill.
In the 104 and 105th Congresses Sen. Gramm supported and moved
legislation to limit meritless class action securities
litigation against technology companies. See, the Private
Securities Litigation Reform Act of 1995 (PSLRA), and the
Securities Litigation Uniform Standards Act of 1998 (SLUSA).
The landmark Gramm Leach Bliley Act carries Sen. Gramm's name.
This landmark legislation removes New Deal era restrictions on
affiliations among banks, securities firms, and insurance
companies. It also contains new privacy provisions regarding
non-public personal information.
Finally, while immigration issues do not fall within the
jurisdiction of the Senate Banking Committee, Sen. Gramm has
been an advocate of amending visa laws to enable companies to
hire highly skilled technology workers from other countries. |
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| Rep. Horn Announces
Retirement |
| 9/4. Rep. Steve Horn
(R-CA) announced that he will not run for re-election. The
California legislature, which is controlled by Democrats,
redrew district lines to eliminate his district. He is
Chairman of the House Reform Committee's Subcommittee
on Government Management, Information and Technology.
During the 105th Congress his subcommittee issued low grades
to government agencies on their level of computer security,
and studied Year 2000 conversion efforts of government
agencies. See, Horn
release. |
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| Solicitor General Files
Amicus Brief in Festo Case |
8/31. The Office of the
Solicitor General (OSG) filed its amicus
curiae brief with the Supreme Court of the
U.S. in Festo
v. Shoketsu Kinzoku Kogyo Kabushiki, a patent
infringement case. The OSG argued that the Appeals Court
judgment should be vacated.
The U.S. Court of Appeals (FedCir)
issued its divided en banc opinion
on November 29, 2000, narrowing the doctrine of equivalents,
which prevents an accused infringer from avoiding liability
for infringement by changing only minor or insubstantial
details of a claimed invention while retaining the invention's
essential identity. The Appeals Court sought to answer several
questions that remained following the Supreme Court's decision
in Warner
- Jenkinson v. Hilton Davis Chemical, 520 U.S. 17 (1997).
The Supreme Court granted certiorari in the Festo case on June
18.
The OSG wrote in the amicus brief that the "doctrine of
equivalents provides that a product or process that does not
literally infringe upon the express terms of a patent claim
may nevertheless be found to infringe if there is an
"equivalence" between the elements of the accused
product or process and the claimed elements of the patented
invention. ... That doctrine is limited by the concept of
prosecution history estoppel, which recognizes that, if a
patent claim is amended during patent prosecution, the
amendment may curtail application of the doctrine of
equivalents to the amended claim."
The OSG stated that the questions presented are "Whether
an amendment of a patent claim that narrows the scope of the
claim for any reason related to the statutory requirements for
a patent gives rise to prosecution history estoppel with
respect to the amended portion of the claim" and
"Whether an amendment of a patent claim that gives rise
to prosecution history estoppel completely precludes
invocation of the doctrine of equivalents for the amended
portion of the claim."
The OSG argued that Federal Circuit "correctly ruled that
an amendment of a patent claim that narrows the scope of the
claim for reasons of patentability gives rise to prosecution
history estoppel with respect to the amended portion of that
claim." However, it continued that the Court "erred
in ruling that a patent claim amendment that gives rise to
prosecution history estoppel completely bars invocation of the
doctrine of equivalents for the amended portion of the
claim." Hence, it argued that the judgment of the Court
of Appeals should be vacated. |
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| Bush Announces 13 U.S.
Attorneys |
9/4. President Bush announced his intent to nominate 13 U.S.
Attorneys. Among these is the nomination of Thomas DiBiagio
for the District of Maryland. DiBiagio is currently a partner
in the Washington DC law firm of Dyer Ellis & Joseph.
From 1991 to 2000 he was Assistant U.S. Attorney for the
District of Maryland. See, White
House release and Dyer Ellis bio.
The other nominations are as follows: William Duffy (Northern
District of Georgia), Maxwell Wood (Middle District of
Georgia), Edward Kubo (District of Hawaii), Steven Colloton
(Southern District of Iowa), Donald Washington (Western
District of Louisiana), Jeffrey Collins (Eastern District of
Michigan), Gregory Lockhart (Southern District of Ohio),
Sheldon Sperling (Eastern District of Oklahoma), Mary Beth
Buchanan (Western District of Pennsylvania), Daniel Bogden
(District of Nevada), Peter Hall (District of Vermont), Thomas
Johnston (Northern District of West Virginia). |
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| More News |
8/31. Xerox announced
that it has reached a settlement of its remaining claims
against Copier Services Unlimited. See, Xerox
release.
9/4. National Science Foundation
(NSF) published a notice
in the Federal Register that the Advisory Committee for
Cyberinfrastructure will hold a meeting on September 14,
2001, from 2:00 - 5:00 PM, at Room 1150, National Science
Foundation, 4201 Wilson Boulevard, Arlington, Virginia. The
purpose of this meeting is to develop a plan for the
preparation of a report to the NSF regarding advanced
cyberinfrastructure and the evaluation of the existing
Partnerships for Advanced Computational Infrastructure. See,
Federal Register, September 4, 2001, Vol. 66, No. 171, at Page
46293.
9/4. The Copyright
Office (CO) published a notice
in the Federal Register that it is extending the period for
filing comments regarding the determination of reasonable
rates and terms for the digital performance of sound
recordings. The CO is extending the period to file
comments to proposed regulations that will govern the RIAA
collective when it functions as the designated agent receiving
royalty payments and statements of accounts from nonexempt,
subscription digital transmission services which make digital
transmissions of sound recordings under the provisions of § 114
of the Copyright Act. Comments and Notices of Intent to
Participate in a Copyright Arbitration Royalty Panel
Proceeding are due by September 19, 2001. See, Federal
Register, September 4, 2001, Vol. 66, No. 171, at Page 46250. |
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| Wednesday, Sept. 5 |
The House returns from its August recess.
The House is likely to take up several non controversial
matters under suspension of the rules. It will likely pass HR
1866, HR
1886, and HR
2048. HR 1866 would overturn the 1997 opinion of the U.S. Court of Appeals (FedCir)
in In
Re Portola Packaging, in which the Court held that the
restriction on the scope of patent reexaminations to
"substantial new questions" precludes the
consideration of prior art that was before the examiner. The
key language of the HR 1866 amends 35 U.S.C. §§ 303(a) and
312(a). It adds the following: "The existence of a
substantial new question of patentability is not precluded by
the fact that a patent or printed publication was previously
cited by or to the Office." HR 1886 affords all
participants, including third party requesters, in
reexamination proceedings, judicial review before federal
appeals courts. HR 2048 would require the Attorney General to
submit a report to the House and Senate regarding the
effectiveness of State Justice Institute operations.
9:30 AM. The Center for Freedom and Technology, of the Pacific Research
Institute, will hold a press conference to release a study
titled "Consumer Privacy: A Free Choice Approach."
For more information, contact Sonia Arrison, Director, Center
for Freedom and Technology, Pacific Research Institute,
415-989-0833 x107. Location: National Press Club, Lisagor
Room, 529 14th St. NW, 13th Floor, Washington DC.
3:30 PM. The Senate Intelligence Committee will hold a hearing
to examine the FY 2002 Intelligence Authorization Bill,
focusing on information leak provisions. Location: Room 216,
Hart Building.
Deadline to file reply comments with the FCC in its
Notice of Inquiry (NOI) regarding video competition. On June
20, 2001 the FCC adopted a NOI into the status of competition
in the market for the delivery of video programming. The FCC
stated in a release
that "The NOI seeks information that will allow the FCC
to evaluate the status of competition in the video
marketplace, prospects for new entrants to that market, and
its effect on the cable television industry and consumers. The
NOI also solicits information regarding the extent to which
consumers have choices among video programming distributors
and delivery technologies." See, CS Docket No. 01-129. |
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| Thursday, Sept. 6 |
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in Verizon v. FCC, No. 00-1207.
Judges Ginsburg, Edwards and Sentelle will preside. Location:
333 Constitution Ave., NW, Washington DC.
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in National Association of Broadcasters
v. FCC, No. 00-1054. Judges Henderson, Rogers and Tatel
will preside. Location: 333 Constitution Ave., NW, Washington
DC.
10:00 AM. The Senate
Judiciary Committee will hold an executive business
meeting. Location: Room 226, Dirksen Building. |
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| Friday, Sept. 7 |
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in Fox v. FCC, No. 00-1222. Judges
Ginsburg, Edwards and Sentelle will preside. Location: 333
Constitution Ave., NW, Washington DC.
POSTPONED. 9:30
AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet has scheduled a hearing titled "Area
Code Exhaustion: Management of Our Nation’s Telephone
Numbers." Location: Room 2123, Rayburn Building.
9:30 AM - 12:00 Noon. The FCC's Office of Engineering and
Technology (OET) will host the first of two tutorials on
new spectrally efficient techniques. Location: FCC, Commission
Meeting Room, 445 12th Street, Room TW-C305, Washington DC.
1:30 - 3:00 PM. The FCC's Office
of Engineering and Technology (OET) will host the second
of two tutorials on new spectrally efficient techniques.
Location: FCC, Commission Meeting Room, 445 12th Street, Room
TW-C305, Washington DC.
Deadline to submit comments to the USPTO in
response to its notice
of proposed rulemaking regarding elimination of continued
prosecution application practice as to utility and plant
patent applications. The notice stated that the AIPA
enacted provisions for the continued examination of a utility
or plant application at the request of the applicant, and
therefore, "there no longer appears to be a need for
continued prosecution application (CPA) practice as to utility
and plant applications. Thus, the Office is proposing to
eliminate CPA practice as to utility and plant applications.
An applicant for a utility or plant patent may also continue
to effectively obtain further examination of the application
by filing a continuing application under section 1.53(b).
Since RCE practice does not apply to design applications, CPA
practice will remain in place for design applications."
See, Federal Register, July 9, 2001, Vol. 66, No. 131, at
Pages 35763 - 35765. |
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