11/1. The Supreme Court denied certiorari in Invention Submission Corporation v. Dudas, a case involving the U.S. Patent and Trademark Office (USPTO). See Order List [14 pages in PDF] at page 3.

This Order lets stand an opinion [13 pages in PDF] of the U.S. Court of Appeals (4thCir) that held that an agency advertising campaign that is facially neutral, and does not identify any party, is not a final agency action.

Invention Submission Corporation (ISC) filed a complaint in U.S. District Court (EDVa) against James Rogan, who was then the Director of the USPTO; Jonathan Dudas is the current Director. The complaint alleged violation of the Administrative Procedure Act (APA). ISC alleged that the USPTO's advertising campaign in 2002 to alert the public about invention promotion scams was aimed at ISC and harmed ISC. ISC alleged that this ad campaign was an illegal final agency action that was arbitrary and capricious, and that exceeded the statutory authority of the USPTO.

The District Court dismissed the complaint, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. ISC appealed. The Court of Appeals vacated and remanded with instructions that the District Court dismiss pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction, on the grounds that the ad campaign was not a final agency action. See, story titled "4th Circuit Rules USPTO Ad Campaign Was Not A Reviewable Final Agency Action" in TLJ Daily E-Mail Alert No. 839, February 18, 2004.

This case is Invention Submission Corporation v. Jonathan Dudas, Sup. Ct. No. 04-40, a petition for writ of certiorari to the U.S. Court of Appeals for the 4th Circuit. The Court of Appeals case is Invention Submission Corporation v. James Rogan, App. Ct. No. 02-2461, an appeal from the U.S. District Court for the Eastern District of Virginia, D.C. No. CA-02-1038-A, Judge Leonie Brinkema presiding. Judge Niemeyer wrote the opinion of the Court of Appeals, in which Judges Shedd and Wilkins joined.

11/1. The Supreme Court issued an order in the consolidated cases involving Constitutional challenges to state restraints on the direct sale of alcoholic beverages, including internet wine sales. The Court ordered that "The motion to reorder presentation of oral argument and for divided argument is granted." See, Order List [14 pages in PDF] at page 2. The consolidated cases are Granholm v. Heald, No. 03-1116, Michigan Beer & Wine Wholesalers v. Heald, No. 03-1120, and Swedenburg v. Kelly, No. 03-1274. Oral argument is scheduled for Tuesday, December 7, 2004 at 10:00 AM. See, schedule [PDF].

11/1. The Supreme Court announced that "The Court will take a recess from Monday, November 15, 2004, until Monday, November 29, 2004." See, Order List [14 pages in PDF] at page 14.

11/1. The U.S. Court of Appeals (1stCir) issued its opinion in Roger Edwards v. Fiddes & Sons. This is a contract case involving the effect of e-mail messages, that was heard in federal court under diversity jurisdiction. The Court of Appeals affirmed the District Court.

Roger Edwards, LLC filed a complaint against Fiddes & Sons alleging breach of contract. The District Court granted partial summary judgment to Fiddes & Sons. This judgment was based upon a finding that Roger Edwards terminated the contract by sending Fiddes & Sons an e-mail message that included the statement, "[I]t is over ... [W]e are done".

Roger Edwards argued that this e-mail could be interpreted in different ways, and that it was merely venting frustration. The Appeals Court affirmed. E-mail messages have legal consequences.

This case is Roger Edwards, LLC v. Fiddes & Sons, Ltd., U.S. Court of Appeals for the First Circuit, App. Ct. Nos. 03-2096 and 03-2195, appeals from the U.S. District Court for the District of Maine.

10/29. The Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) will host a symposium on Thursday, November 4 on the effect of new technologies, such as voice over internet protocol (VOIP), on the North American Numbering System.

The event, which is titled "The Future of Numbering: Will New Technologies, Innovations and Services Affect Number Administration and Optimization", will be held from 1:00 - 4:00 PM. in the FCC's Commission Meeting Room.

Earlier in the day, at 8:30 AM, the North American Numbering Council (NANC) will meet at the same location. See, FCC notice [PDF].

The FCC's notice [PDF] for the afternoon symposium states that "emerging new technologies such as Voice Over Internet Protocol, or VoIP, raise new demand for numbers and new challenges. Among those challenges are ``portable´´ VoIP services that use the same number no matter where the customer is located geographically."

The agenda includes panels titled "Status of the North American Numbering Plan", "Is there a likelihood of exhausting numbers under the NANP in the foreseeable future?", "New number sources and substitutes for NANP numbers", "New technologies/services that may require numbering resources", and "Numbering resource optimization".

11/1. Loyd Ivey was elected Chair of the Consumer Electronics Association's (CEA) Executive Board. He is the Ch/CEO of Mitek Corporation. Patrick Lavelle was elected Vice Chair of the CEA's Executive Board. He is the P/CEO of Audiovox Electronics Corporation. John Flanner was elected to the CEA's Executive Board. He is the President of Flanner's Audio & Video, a Wisconsin based retailer. See, CEA release.

10/28. The U.S. Court of Appeals (4thCir) issued its opinion [12 pages in PDF] in General Technology Applications v. Exro, a case regarding the right to litigation proceeds recovered in a patent infringement lawsuit. The Court of Appeals held that the District Court lacked jurisdiction, vacated the District Court's judgments, and remanded with instructions to remand to the state court. This case is General Technology Applications, Inc. v. Exro, Ltda., et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 03-1860, an appeal from the U.S. District Court for the Eastern District of Virginia, at Alexandria, of two consolidated cases, D.C. Nos. CA-02-1706-A and CA-03-466, Judge Claude Hilton presiding.

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General Election Day.

The House is in recess until November 16, 2004. See, Republican Whip Notice.

The Senate is in recess until November 16, 2004.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel D, will hear oral argument in IEX Corp. v. Blue Pumpkin Software (No. 04-1068) and Postx Corp. v. Secure Data (No. 04-1257). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel E, will hear oral argument in Ishida Co. v. Taylor (No. 04-1102) and Lawman Armor v. Master Lock (No. 04-1276). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir), Panel F, will hear oral argument in Howmedica v. Tranquil Prospect (No. 04-1302). Panel F+ will hear oral argument in Commissariat v. Chi Mei Optoelecton (No. 04-1139). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

Rescheduled date for the Federal Communications Commission's (FCC) Auction No. 37, pertaining to FM broadcast construction permits. See, notice in the Federal Register, July 16, 2004, Vol. 69, No. 136, at Pages 42729 - 42742.

9:30 - 11:30 AM. Federal Communications Commission's (FCC) World RadioCommunication 2007 (WRC-07) Advisory Committee's Informal Working Group 4, Broadcasting and Amateur Issues, will meet. See, FCC notice [PDF]. Location: Shaw Pittman, 2300 N St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel G, will hear oral argument in Purdue Pharmaceutical v. Endo Pharmaceutical (No. 04-1189) and Transonic Systems v. Fresenius USA (No. 04-1439). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel H, will hear oral argument in Anheuser Busch v. Crown Cork & Seal (No. 04-1185). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch. The topic will be "Intercarrier Compensation Reform -- Where Is It Headed?". The speakers will be Steve Morris (Deputy Division Chief of the FCC's Wireline Competition Bureau's Pricing Policy Division), Ken Pfister (Great Plains Communications), and Rich Rindler (Swidler Berlin), and others. RSVP to Cecilia Burnet at cmburnett@hhlaw.com or 202 637-8312 by October 29. Location: Hogan & Hartson, 555 13th Street, NW, Litigation Center Conference Room.

2:00 PM. The U.S. Court of Appeals (FedCir), Panel I, will hear oral argument in Bayer AG v. Housey Pharmaceuticals (No. 04-1194). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Ten Ways to Protect Intellectual Property When Drafting E-Commerce Agreements". The speaker will be Walter Effross (American University law school). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H Street, NW.

RESCHEDULED FOR NOVEMBER 9. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting.

8:30 AM - 12:15 PM The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host an event titled "Tour of the FCC's Engineering and Technology Laboratory". The program includes transportation to and from the FCC, and lunch with FCC lab personnel in Columbia, MD. The price is $45. RSVP to Heidi Kurtz at 202-293-4000 or heidi@fcba.org. Registrations, payments and cancellations are due no later than Friday, October 29, 2004..

8:30 AM - 12:30 PM. The North American Numbering Council (NANC) will meet. See, FCC notice [PDF]. Location: FCC, Commission Meeting Room, Room TWC305, 445 12th, SW.

8:30 - 11:30 AM. The Software and Information Industry Association (SIIA) will host a seminar titled "Software Licensing Best Practices Seminar Series: Licensing to Uncle Sam: How it Impacts Software License Agreements". See, notice. Prices vary. Location: Mintz Levin, 12010 Sunset Hills Road, Suite 900 Reston, VA.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel J, will hear oral argument in Corus Staal BV v. Commerce (No. 04-1107) and Taghulk Proprietary v. Service Corp. (No. 04-1201). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel K, will hear oral argument in Freeman v. Gerber Products (No. 04-1203). See, FedCir calendar. Location: Courtroom 203, 717 Madison Place, NW.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) will hold a symposium on the effect of new technologies, such as voice over internet protocol (VOIP), on the North American Numbering System. The title of the event is "The Future of Numbering: Will New Technologies, Innovations and Services Affect Number Administration and Optimization". See, FCC notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.

4:00 PM. Julie Cohen (Georgetown University Law Center) will present a paper titled "Copyright, Commodification, and Culture: Locating the Public Domain" at an event hosted by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. See, notice. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

Deadline to submit comments to the Department of Homeland Security's (DHS) Bureau of Customs and Border Protection (CBP) in its rulemaking proceeding regarding recordation of copyrights and enforcement procedures to prevent the importation of piratical articles. See, notice in the Federal Register, October 5, 2004, Vol. 69, No. 192, at Pages 59562 - 59569. See also, story titled "Bureau of Customs and Border Protection Conducts DMCA Rulemaking" in TLJ Daily E-Mail Alert No. 998, October 18, 2004.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NJ TV Corp v. FCC, No. 03-1444. Judges Henderson, Rogers and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel M, will hear oral argument in Junker v. Eddings (No. 04-1208), ASM America v. Genus Inc. (No. 04-1211), Mayer Berkshire v. Berkshire Fashion (No. 04-1254), and Carolina Tobacco v. Bureau of Customs (No. 04-1269). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir), Panel N, will hear oral argument in Invitrogen v. Clonetech Labs (No. 04-1039). See, FedCir calendar. Location: Courtroom 402, 717 Madison Place, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The topics will be wireless services and homeland security, CALEA, network outage reporting, and wireless priority service. The speakers will be Jeffery Goldthorp (FCC Office of Engineering and Technology), Geraldine Matise (OET), and Christopher Guttman-McCabe (CTIA). The price to attend is $15. See, registration form [PDF]. Location: Wiley Rein & Fielding, 1776 K St., NW.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its out of cycle reviews of Malaysia, Poland, and Taiwan, pursuant to Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. § 2242 (also known as Special 301), which requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, October 13, 2004, Vol. 69, No. 197, at Pages 60928 - 60929.

Deadline to submit comments to the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) in response to Geophysical Survey Systems, Inc.'s (GSSI) request for a waiver of Part 15 of the FCC's rules to permit the higher power operation of ultra-wideband (UWB) non-contact ground penetrating radars (GPRs). See, FCC notice [2 pages in PDF]. This is ET Docket No. 04-374.

12:00 NOON - 1:30 PM. The DC Bar Association will host a CLE program titled "Overview Of Community Trademark And Community Design Law". The speakers will be Elia Sugraņes (Oficina Sugranes, Barcelona, Spain) and Daan Teeuwissen (Knijff Weesp, The Netherlands). See, notice. Prices vary from $15-$20. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Law Journal Committee will meet to discuss the Federal Communications Law Journal. Lunch will be served. RSVP to jamison.prime@fcc.gov by Wednesday, November 3. Location: Conference Room 13170E (13th Floor), Wilmer Cutler, 1801 Pennsylvania Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The agenda includes planning for future lunches and CLE sessions. RSVP to Howard Liberman at hliberman@dbr.com. Location: Drinker Biddle & Reath, 1500 K Street, NW, 11th Floor.

12:30 - 2:00 PM. The DC Bar Association's Computer Law Section and Telecommunications Law Section will host a panel discussion titled "Technology Companies And Telecom: The View From The Outside ... For Now". The speakers will be Jonathan Askin (General Counsel, pulver.com), Paula Boyd (Microsoft), Elizabeth Banker (Yahoo), Peter Pitsch (Intel), Jonathan Frankel (Wilmer Cutler & Pickering), and Julie Veach (FCC). See, notice. Prices vary from $15-$30. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "How to Litigate an Intellectual Property Case Series, Part 1: How to Litigate a Copyright Case". The speaker will be Kenneth Kaufman (Skadden Arps). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP). This NPRM is FCC 04-187 in ET Docket No. 04-295. The FCC adopted this NPRM at its August 4, 2004 meeting, and released it on August 9. See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004. See, notice in the Federal Register, September 23, 2004, Vol. 69, No. 184, Pages 56976 - 56987.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding its proposal to eliminate paper filings and require applicants to file electronically filings related to international telecommunications services. This NPRM is FCC 04-133 in IB Docket No.04-226. See, notice in the Federal Register, August 9, 2004, Vol. 69, No. 152, at Pages 48188 - 48192.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding amendments to FCC rules to permit VHF public coast (VPC) and automated maritime telecommunications system (AMTS) licensees to provide private mobile radio service to units on land. This NPRM is FCC 04-171 in WT Docket No. 04-257 and RM-10743. See, notice in the Federal Register, August 10, 2004, Vol. 69, No. 153, at Pages 48440 - 48443.

Extended extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notices (DA 04-1690, DA 04-1758, and DA (04-2906) requesting public comments on constitutionally permissible ways for the FCC to identify and eliminate market entry barriers for small telecommunications businesses and to further opportunities in the allocation of spectrum based services for small businesses and businesses owned by women and minorities. This proceeding is MB Docket No. 04-228. See, notice in the Federal Register, September 15, 2004, Vol. 69, No. 178, at Pages 55630 - 55631.