| Doha, WTO and Intellectual
Property Rights |
11/12. Representatives of the Office
of the U.S. Trade Representative (USTR) held a press
conference at the Fourth World
Trade Organization (WTO) Ministerial in Doha, Qatar,
regarding trade related aspect of intellectual property
(TRIPS). Representatives of about 140 nations that are members
of the WTO are in Doha to negotiate an agreement to launch a
new round of global trade talks. See, transcript.
11/12. The WTO issued a release
regarding the status of talks in Doha, Qatar, to launch a new
round of trade talks. The release contained the following:
"Intellectual property (TRIPS) / Public health / Access
to medicines -- Minister Luis Ernesto Derbez Bautista of
Mexico reported considerable progress in the consultations. He
said a new draft has been prepared, and that it is almost a
final draft."
11/12. The USTR issued a release
titled "10 Ways Global Trade Negotiations Would Benefit
Developing Nations". Intellectual property protections is
one of the topics that it addresses. It states that "The
existing TRIPs agreement can help to strengthen intellectual
property rights around the world, while providing flexibility
to help deal with tragic pandemics such as HIV/AIDS, malaria,
and tuberculosis. As developing countries have implemented the
intellectual property protections in TRIPs, they have begun to
benefit from increased technology transfer and investment --
two key factors in long term economic growth. Strong,
effective intellectual property protection is the cornerstone
on which an attractive investment climate is built, as
companies will have greater incentives to invest in countries
if they are confident there is a legal structure to protect
their innovations from unauthorized copying. A strong
intellectual property regime also discourages brain drain, as
it encourages the best and the brightest in developing nations
to carry out research at home, confident that the fruits of
their labors will enjoy patent protections." |
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| China Joins World Trade
Organization |
11/10. The World Trade
Organization (WTO) announced that the WTO's Ministerial
Conference approved "by consensus the text of the
agreement for China's entry into the WTO. China will become
legally a member 30 days after the WTO receives notification
of the ratification of the agreement by China's
Parliament." See, WTO
release.
11/9. The White House Press Office released a statement
regarding accession of the PR China to the WTO: "Today
the President certified that final terms of entry for the
People's Republic of China to the World Trade Organization (WTO)
are at least equivalent to those agreed to bilaterally between
the United States and China in 1999. The 142 members of the
WTO who are meeting this week in Doha, Qatar for the WTO
Ministerial are expected to decide formally the accessions of
both China and Taiwan. The President's certification is
required under a law the Congress passed last year authorizing
the grant of Permanent Normal Trade Relations (PNTR) status to
China. Granting China PNTR status is necessary if the United
States is to take full advantage of China's WTO membership,
including recourse to the organization's dispute settlement
mechanism." See also, Presidential
Determinations under § 1106(a) of the Omnibus Trade
and Competitiveness Act of 1988.
11/11. The World Trade
Organization (WTO) announced that the WTO's Ministerial
Conference approved "by consensus the text of the
agreement for Chinese Taipei's entry into the WTO. Chinese
Taipei will become legally a member 30 days after the WTO
receives notification of the ratification of the agreement by
Chinese Taipei's Parliament." See, WTO
release. |
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| 3rd Circuit Rules on 11th
Amendment and Telecom Act |
11/7. The U.S.
Court of Appeals (3rdCir) issued its opinion
in MCI
v. Bell Atlantic, a case regarding the 11th
Amendment immunity of state public utilities commissions from
suits brought under the Telecom Act of 1996. The Appeals Court
concluded that the Pennsylvania Public Utility Commission (and
its Commissioners) are not entitled to Eleventh
Amendment immunity from suit brought in U.S.
District Court under the Telecom Act of 1996; the state has
waived its sovereign immunity by regulating local telephone
service in Pennsylvania within the confines of the 1996 Act.
The Appeals Court affirmed in part, and reversed in part, the
District Court's decision regarding interconnection
agreements. Judge Roth wrote the opinion of the Appeals Court.
Judge Ambro concurred on the 11th Amendment issue, but
dissented on a separate issue pertaining to the collocation of
remote switching modules.
11/7. The U.S.
Court of Appeals (3rdCir) issued its opinion
in Bell
Atlantic v. Pennsylvania PUC, another case
involving the intersection of 11th Amendment immunity and
state PUC regulation of telecom interconnection agreements.
The Appeals Court, relying upon its decision in MCI v. Bell
Atlantic, denied the defense of sovereign immunity under the
11th Amendment. It further held that it had no jurisdiction
over the PUC's other claims on appeal, and dismissed and
remanded.
The Eleventh
Amendment of the U.S. Constitution provides: "The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State." |
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| More Appeals Court Opinions |
11/7. The U.S.
Court of Appeals (FedCir) issued its opinion in Novartis
v. Ben Venue Laboratories. Novartis owns U.S.
Patent No. 4,711,880, for crystalline formulations of the
drug pamidronate disodium. Novartis filed a complaint in the
U.S. District Court (DNJ) against Ben Venue Laboratories and
Bedford Laboratories alleging infringement. The District Court
granted summary judgment of noninfringement to defendants. The
Appeals Court affirmed.
11/9. The U.S.
Court of Appeals (DCCir) issued its opinion
in Verizon v. FCC.
Local exchange carriers sought review of an order of the FCC holding
them liable for violating the unreasonable charge provisions
of 47
U.S.C. § 201(b), for wrongfully imposing "End User
Common Line fees" on certain independent payphone
providers. The Appeals Court denied the petitions for review.
11/9. The U.S.
Court of Appeals (DCCir) issued its opinion
in AT&T
v. FCC. AT&T Wireless Services, Bell South
Cellular, SBC Wireless, and Cellco Partnership sought review
of an FCC order granting a waiver of 47 C.F.R. § 22.925 for
two years to permit AirCell and cellular licensees that had
entered into resale agreements with AirCell to provide
airborne cellular telephone service. 22.925 provides that
"Cellular telephones installed in or carried aboard
airplanes, balloons or any other type of aircraft must not be
operated while such aircraft are airborne (not touching the
ground). When any aircraft leaves the ground, all cellular
telephones on board that aircraft must be turned off."
The Appeals Court granted the petitions for review, in part. |
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| More News |
11/12. The ICANN began a
three day meeting titled "Security and Stability of the
Internet Naming and Address Allocation Systems".
11/12. IBM announced that it formed the IBM Privacy
Institute and the IBM
Privacy Management Council to focus on privacy and data
protection challenges facing its enterprise customers and the
marketplace. See, IBM release. |
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| Fed Circuit Rules on
Doctrine of Unclean Hands in Patent Infringement Suits |
11/5. The U.S.
Court of Appeals (FedCir) issued its opinion in Aptix
v. Quickturn Design Systems, a case involving
the application of the doctrine of unclean hands to patent
prosecutions and patent infringement litigation.
Amr Mohsen, the founder and Ch/CEO of Aptix Corporation is the
inventor of U.S.
Patent No. 5,544,069, titled "Structure having
different levels of programmable integrated circuits
interconnected through bus lines for interconnecting
electronic components". This patent discloses and claims
field programmable circuit boards that permit computer
programmers to reconfigure the electronic components of an
integrated circuit. Aptix is the assignee of this patent.
Aptix, in turn, licensed this patent to both Meta Systems and Mentor Graphics.
In 1998, Aptix and Meta jointly filed a complaint in U.S.
District Court (NDCal) against Quickturn Design Systems
alleging infringement of this patent. Quickturn asserted
counterclaims and added Mentor Graphics as a counterclaim
defendant.
During this litigation Mohsen forged research notebooks,
staged the disappearance and reappearance of notebooks, and
ultimately, asserted the Fifth Amendment at an evidentiary
hearing.
The District Court determined that this patent was
unenforceable and dismissed the complaint, invoking the
unclean hands doctrine stated in Keystone
Driller v. General Excavator, 290 U.S. 240 (1933). The
District Court then found that this was an exceptional case
under 35 U.S.C. § 285, and ordered Aptix to pay Quickturn's
attorney fees and costs.
The Appeals Court distinguished between misconduct before the
USPTO in prosecuting a patent, and subsequent misconduct
before the U.S. District Court in a proceeding concerning the
validity of the patent. The Appeals Court stated that Mohsen's
misconduct was entirely in the U.S. District Court. Moreover,
the Appeals Court noted that the licensees of the patent, Meta
Systems and Mentor Graphics, had engaged in no misconduct.
Hence, Judge Rader, writing for the Court, concluded that
"The trial court had broad discretionary power to fashion
appropriate relief in this case, including denying any and all
relief to Aptix, and ordering Aptix to compensate Quickturn
for its reasonable attorney fees and costs. Indeed, this
relief was entirely fitting. However, the record does not
support a judgment rendering the '069 patent unenforceable.
Keystone I and the doctrine of unclean hands do not provide a
basis for punishing Aptix by nullifying the grant of a
property right. Accordingly, this court affirms the district
court's dismissal of the complaint and its award of attorney
fees, and vacates the judgment of unenforceability."
Judge Mayer dissented in part: "Because a fraud upon the
court is no less grave than a fraud on the Patent and
Trademark Office, I would affirm the district court's holding
that the '069 patent is unenforceable. The maxim of unclean
hands is applied broadly, giving substantial discretion to the
officer of the court in its application." |
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| People |
11/5. The law firm of Wilson
Sonsini Goodrich & Rosati announced that it elected
five associates as new members of the firm. Cynthia
Ann Dy is in the firm's Securities and Commercial
Litigation practice group in its Palo Alto, California,
office. Steven
Guggenheim is in the Securities Litigation practice
group in the Palo Alto office. Robert
Ishii is in the Corporate and Securities practice
group in the San Francisco office. Christian
Montegut is in the Corporate and Securities practice
group in the Kirkland, Washington, office. Robert
O'Connor is in the Corporate and Securities practice
group, and is Managing Attorney of Salt Lake City office. See,
WSGR
release.
11/9. The law firm of Morrison
& Foerster announced the establishment of a new
practice group -- Government Business and Technology Group --
and the hiring of three attorneys from the law firm of Piper Marbury Rudnick
& Wolfe. Stan Soya and Rick Vacura will
join the firm as partners, while Holly Svetz will be of
counsel to the firm. They focus on government contracts and
dispute representation for defense contractors, telecom and
other high technology companies that deal with the federal
government. The three will be based in the firm's Northern
Virginia office. See, MoFo
release.
11/12. The Washington DC based law firm of Wilmer Cutler & Pickering
(WCP) and the Berlin law firm of Quack Rechtsanwälte
will merge as of January 1, 2002. See, WCP
release [PDF].
11/9. The law firm of King
& Spalding announced that it has created the position
of Chairman, to be held by Walter Driver. It also
announced four new Managing Partners, one for each offices in
Atlanta, Washington DC, New York, and Houston. Wick
Sollers, a former head of the Special Matters
Practice, will be Managing Partner of the Washington DC
office. Mason Stephenson, a former head of the Real
Estate Practice, will be Managing Partner of the Atlanta
office. Mark Zvonkovic, a partner in the Corporate
Finance Practice, will be Managing Partner of the New York
office. Randolph Coley will be Managing Partner of the
Houston office. See, KS
release. |
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| Cato to Host Conference on
IPR in the Information Age |
The Cato Institute will
host a day long conference titled "The Future of
Intellectual Property in the Information Age" on
Wednesday, November 14. See, online
conference program. The schedule is as follows:
8:45 - 9:30 AM. Keynote address by Rep. Rick Boucher
(D-VA).
9:30 - 10:30 AM. Panel: What Rights Do We Have in Our
Intangible Intellectual Creations?
10:45 AM - 12:00 NOON. Panel: Digital Rights Management, Fair
Use and Compulsory Licensing or Where Is Copyright Headed in
the Post Napster World: Legal or Market Solutions?
12:45 - 1:30 PM. Luncheon address by Sen. Patrick Leahy (D-VT).
1:30 - 2:45 PM. Panel: Technology vs. Technology: Should Code
Breakers Go to Jail? The Limits of Fair Use and Anti
Circumvention.
3:30 - 4:45 PM. Panel: Business Method
Patents: Logical Evolution or Radical Break from the Past? |
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Tech Law Journal is a free access web site and e-mail alert
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| Tuesday, Nov 13 |
The House will meet at 12:30 PM for morning hour and 2:00 PM
for legislative business. No recorded votes are expected
before 6:30 PM. The House will consider a number of measures
under suspension of the rules.
The Senate will meet at 10:30 AM. It will likely take up SJRes
28.
Day two of a three day meeting of the ICANN titled "Security
and Stability of the Internet Naming and Address Allocation
Systems". Location: Marina Beach Marriott,
Marina del Rey, California.
Deadline to submit applications to the Rural Utilities Service
(RUS) for grants to finance the acquisition, construction and
installation of equipment, facilities and systems to provide
dial-up Internet access services in rural areas. This is a $2
Million pilot program to encourage entities to provide
Internet service in areas where it is unavailable. See, notice
in Federal Register, August 15, 2001, Vol. 66, No. 158, at
Pages 42836 - 42838.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine
homeland defense issues, focusing on sharing information with
local law enforcement. The witnesses will be Thomas Carey
(FBI), Bernard Kerik (Commissioner, NYC Police), and Martin
O'Malley (Mayor of Baltimore). Location: Room 226, Dirksen
Building.
5:30 PM. The House Rules
Committee will meet regarding the conference report on HR
2500, the Commerce, Justice, State, and the Judiciary
Appropriations Act for FY 2002. This includes funding most of
the technology related agencies and departments, including the
USPTO, FCC, FTC, DOJ, NTIA, NIST, BXA, and SEC. |
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| Wednesday, Nov 14 |
The House will likely take up HR
2500, the Commerce, Justice, State, and the Judiciary
Appropriations Act for FY 2002 Conference Report. This
includes funding most of the technology related agencies and
departments, including the USPTO, FCC, FTC, DOJ, NTIA, NIST,
BXA, and SEC.
8:15 AM - 7:00 PM. Day one of a two day conference hosted by
the Securities and Exchange Commission (SEC) and Northwestern
University Law School titled Securities Regulation in the
Global Internet Economy. See, SEC
release. Location: Grand Hyatt Hotel, 1000 H Street NW,
Washington DC.
8:30 AM - 4:30 PM. The Cato
Institute will host a conference titled The Future of
Intellectual Property in the Information Age. See, online
conference program. Location: Cato Institute, corner of
Massachusetts Ave. NW and 10th St., Washington DC.
Day three of a three day meeting of the ICANN titled "Security
and Stability of the Internet Naming and Address Allocation
Systems". Location: Marina Beach Marriott,
Marina del Rey, California.
8:30 AM. The Bureau of National Affairs (BNA) will host a day
long event titled "Public Policy Forum: International
E-Commerce & Internet Regulation." See, online brochure. Location:
Omni Shoreham Hotel, 2500 Calvert Street NW (at Connecticut
Ave.), Washington DC.
9:00 AM. Day one of a two day meeting of the Bureau of Export Administration's
Information Systems Technical Advisory Committee (ISTAC). The
ISTAC advises the Office of the Assistant Secretary for Export
Administration on technical questions that affect the level of
export controls applicable to information systems equipment
and technology. Part of this meeting will be opened to the
public, and part will be closed. The items on the open session
agenda include Intel IA64 Roadmap, Applied Micro Devices (AMD)
Roadmap, ultra wide band (UWB) technology, and membership
coverage of control list categories 3 (electronics), 4
(computers), and 5 (telecommunications and information
security). Location: Hoover Building, Room 3884, 14th Street
between Pennsylvania and Constitution Avenues, NW., Washington
DC.
10:00 The Senate
Judiciary Committee's Technology, Terrorism, and
Government Information Subcommittee will hold a hearing to
examine new technologies for terrorism prevention, focusing on
biometric identifiers. Location: Room 226, Dirksen Building.
12:15 PM. The FCBA's
Mass Media Practice Committee will host a brown bag lunch. The
speaker will be Ken Ferree, Chief of the FCC's Cable Services Bureau.
Location: National Association
of Broadcasters, ground floor conference room, 1771 N
Street, NW, Washington, DC.
2:00 PM. FTC Chairman Timothy
Muris will participate in a panel discussion at the
American Bar Association Presidential Showcase Program titled
"Antitrust Initiatives in Europe and the United
States." Location: Willard Hotel, Washington DC.
3:00 - 5:00 PM. The American
Enterprise Institute (AEI) will host a panel discussion on
the book Free
Trade, Sovereignty, Democracy: The Future of the World Trade
Organization (Amazon). The participants will be Claude
Barfield (author), Christopher DeMuth, Robert Keohane, John
Jackson, and Stephen Krasner. Location: AEI, Wohlstetter
Conference Center, Twelfth Floor, 1150 17th Street, NW,
Washington DC. |
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| Thursday, Nov 15 |
Day one of a three day conference hosted by the Federalist Society titled
"Fifteenth Annual National Lawyer's Convention".
See, registration
form and agenda.
Location: The Mayflower Hotel, 1127 Connecticut Ave., NW,
Washington DC.
8:30 - 11:00 AM. The New Millennium Research Council will host
an event titled "The New State of Competition in the
Telecommunications Industry." For more information,
contact Violet Hobsford at 202 263-2941. Location: Murrow
Room, National Press Club, 529 14th St. NW, 13th Floor,
Washington DC.
8:45 AM. FTC Chairman Timothy
Muris will speak at the American Bar Association
Antitrust Section's Fall Forum titled "New Technologies /
New Administrators". Location: Georgetown University Law
Center, Washington DC.
8:00 AM - 5:30 PM. Day two of a two day conference hosted by
the SEC and
Northwestern University Law School titled Securities
Regulation in the Global Internet Economy. See, SEC
release. Location: Grand Hyatt Hotel, 1000 H Street NW,
Washington DC.
9:00 AM. Day one of a two day meeting of the Bureau of Export Administration's
Information Systems Technical Advisory Committee (ISTAC).
10:00 AM - 12:00 NOON. The FCC's Advisory Committee 2003 for
the World Radiocommunication Conference will hold a meeting.
See, notice
in Federal Register. Location: TW-C305 (Commission Meeting
Room), FCC, 445 12th Street, SW, Washington DC.
12:15 PM. The FCBA's
Common Carrier Committee will host a brown bag lunch titled
"A Blast from the Past" Views from Former Common
Carrier Bureau Chiefs on Current FCC Common Carrier Policy
& Practice." The speakers will be Epstein, Metzger,
Tritt, and Wallman. Location: Wiley
Rein & Fielding, 1750 K Street, 10th Floor, Washington
DC.
1:00 PM. The House
Commerce Committee's Subcommittee on Commerce, Trade, and
Consumer Protection will hold a hearing titled Cyber
Security: Private Sector Efforts Addressing Cyber Threats. Location:
Room 2322, Rayburn Building.
2:00 PM? The U.S. International Telecommunication Advisory
Committee (ITAC) will hold a meeting regarding preparations
for the 2002 World Telecommunication Development Conference (WTDC).
See, notice
in Federal Register. Location: State Department, Room 1408.
2:00 PM. The House
Judiciary Committee's Subcommittee on Immigration and
Claims will hold a hearing on HR 3231, a bill to replace the
Immigration and Naturalization Service with the Agency for
Immigration Affairs. Location: Room 2237, Rayburn Building. |
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| Friday, Nov 16 |
Day two of a three day conference hosted by the Federalist Society titled
"Fifteenth Annual National Lawyer's Convention".
See, registration
form and agenda.
Ted Olson, Solicitor General of the U.S. will speak at
1:45 PM. Location: The Mayflower Hotel, 1127 Connecticut Ave.,
NW, Washington DC.
10:00 AM. The House
Government Reform Committee's Government Efficiency,
Financial Management and Intergovernmental Relations
Subcommittee will hold a hearing titled Oversight Hearing
on National Identification Cards. Location: Room 2154,
Rayburn Building. |
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