12/22. The Court of First Instance of the European Communities issued an order that dismisses in its entirety Microsoft's application for interim measures.

That is, Microsoft has appealed the European Commission's (EC) March 24, 2004 decision that orders its to pay money, redesign its operating system, and give proprietary information to its competitors. Microsoft also requested that the Court of First Instance (CFI) stay the enforcement of the decision pending resolution of the merits of the appeal. The CFI just denied this request, basically, on the basis the Microsoft will not suffer irreparable injury by enforcement of the decision at this time. The just released order concedes that Microsoft may yet prevail before the CFI on the merits of the appeal.

See also, press release [3 pages in PDF] issued by the CFI.

On March 24, 2004 the European Commission (EC) announced a decision that ordered Microsoft to give it 497.2 Million Euros, ordered Microsoft to make changes to its software sold in Europe, and ordered Microsoft to disclose certain information to its competitors. The EC released the text of its decision on April 22, 2004. See, Commission Decision [302 pages in PDF]

Specifically, the EC ordered that "Microsoft Corporation shall, within 90 days of the date of notification of this Decision, offer a full-functioning version of the Windows Client PC Operating System which does not incorporate Windows Media Player".

The EC also ordered that Microsoft shall, within 120 days, "make the Interoperability Information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the Interoperability Information by such undertakings for the purpose of developing and distributing work group server operating system products".

See, stories titled "European Commission Seeks 497 Million Euros and Code Removal from Microsoft" in TLJ Daily E-Mail Alert No. 863, March 25, 2004; and "European Commission Releases Microsoft Decision in TLJ Daily E-Mail Alert No. 883, April 23, 2004.

Microsoft gave the EC the 497.2 Million Euros that it demanded.

However, on June 6, 2004, Microsoft filed an appeal with the European Union's Court of First Instance (CFI) of the March 24 decision of the EC. This is case number T-201/04. See, Microsoft release. That is, Microsoft requested the Court of First Instance to annul the March 24 decision.

Microsoft also filed an application for interim relief. That is, it requested the CFI to stay the enforcement of the March 24 decision pending resolution of appeal.

The December 22 order of the CFI rules on the application for interim relief. It denies it. The just released order does not grant or deny annulment of the March 24 order.

The just released order offers the reasoning that Microsoft will not suffer irreparable harm if the terms of the March 24 decision are enforced.

The EC did not previously enforce its decision while the application for interim relief was pending. Now, it will. Moreover, Microsoft representatives stated that it will comply.

The EC also asserted in its March 24 decision that the basis for these actions was enforcement of competition law. The just released order of the CFI reiterates these assertions.

Hewitt Pate, the Assistant Attorney General in charge of the U.S. Department of Justice's Antitrust Division, has frequently and harshly criticized the EC for its actions against Microsoft.

For example, on April 2, 2004, Pate gave a speech in Washington DC in which he expressed "deep concern about the apparent basis of this decision and the serious potential divergence it represents." Pate said that the EC decision lacks comity, that it will lead to antitrust forum shopping by parties seeking to benefit from regulation, that it may protect competitors rather than competition, and that it may chill lawful product improvement. See, story titled "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004.

See also, Pate's statement of March 24, 2004, and story titled "US Antitrust Chief Says EU's Microsoft Decision Could Harm Innovation and Consumers" in TLJ Daily E-Mail Alert No. 863, March 25, 2004. See also, story titled "Pate Addresses US EU Differences on Antitrust, Microsoft, and IPR" in TLJ Daily E-Mail Alert No. 913, June 8, 2004.

Microsoft issued a release on December 22 in which it states that "While we had hoped that the Court would suspend some or all of the remedies in the case, we are encouraged that the Court has recognized that Microsoft has a number of powerful arguments that must be considered in the full appeal."

Microsoft added that "We continue to believe that the Commission's remedies will bring very few benefits to competitors and consumers in Europe, and will in fact harm many users of the Windows operating system and the thousands of companies across Europe who have built their businesses on the Windows platform."

"We believe that the code removal remedy, obliging Microsoft to release a degraded version of the Windows operating system, will be harmful to consumers and competition and undermines the technology integration that has been the backbone of the IT revolution over the past 3 decades."

Microsoft concluded that "We will take a close look at the order before deciding on our next steps but we will, as we have always said, comply fully with the Court order when it comes into force, pursuant to contingency plans that have been discussed with the European Commission."

See also, transcript of telephone news conference conducted by Brad Smith, Microsoft's General Counsel on December 22.

Smith (at right) said that "we obviously need to go forward as a first order of business and comply with today's decision. The court obviously ruled against our request for interim measures, and instead it decided that we must go forward and comply with the European Commission's decision."

Second, he said that "We do find substantial cause for optimism in a number of aspects of the court's reasoning today. For example, the court discusses the Windows Media Player side of the case and it recognizes that we have important arguments that will need to be assessed by the five-judge panel that will decide the merits of the case. These include the benefits created by our design philosophy in Windows. It includes the fact that, as the court observed today, our design philosophy and our integration of new features into Windows is not the kind of conduct that by its nature is likely to restrict competition. It also reflects the court's recognition that competitors and content providers continue to have a variety of media formats from which to choose, a fact the decision notes that has not been rebutted by the European Commission."

"Similarly, in discussing the compulsory-licensing side of the case, the court's decision today recognizes that there is valuable technology at issue here, something that differentiates this case from other cases in which the court has permitted compulsory licensing by the European Commission, the decision acknowledges that the court will have to assess the substantial intellectual property rights that we have in this technology and the decision recognizes the important argument we have made that competitors do not need access to this technology in order to bring their products to market", said Smith.

One of the questions for Smith was "have any OEMs expressed an interest in licensing Windows with the Media Player removed?" Smith responded that "I have not heard of any OEMs expressing any interest in this to date."

Another question was whether Microsoft will offer the degraded version its operating system (without Media Player) in markets outside of Europe. Smith responded that "we have no plans to offer this version of Windows outside of the European Economic Area at this time, and I don't expect we'll have any such plans in the future." He added that Microsoft is skeptical that consumers will be interested in this version.

12/22. The Federal Trade Commission (FTC) announced that it will jointly host a series of public meetings on patent reform in San Jose, California (February 18, 2005), Chicago, Illinois (March 4, 2005), Boston, Massachusetts (March 18, 2005), and Washington DC (June 9, 2005). The other hosts will be the National Academies' Board on Science, Technology, and Economic Policy (STEP), and the American Intellectual Property Law Association (AIPLA). See, FTC notice.

The FTC, STEP and AIPLA have all published recommendations for patent reform. On October 28, 2003, the FTC released a report titled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy". See, Executive Summary [18 pages in PDF] and Report [2.28 MB in PDF]. See also, story titled "FTC Releases Report on Competition and Patent Law" in TLJ Daily E-Mail Alert No. 768, October 29, 2003.

See also, STEP's report titled "A Patent System for the 21st Century", and the AIPLA's report [49 pages in PDF] titled "AIPLA Response to the National Academies Report entitled “A Patent System for the 21st Century”"

Jon Dudas, head of the U.S. Patent and Trademark Office (USPTO), is scheduled to be the luncheon speaker at the three meetings in San Jose, Chicago, and Boston.

12/9. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register that describes and contains revisions to its rules regarding the criteria for determining if a foreign made item incorporating U.S. origin encryption is subject to the Export Administration Regulations (EAR). It also revises the notification requirements for beta test encryption software and certain publicly available encryption software. And, it revises the review and reporting requirements for exports and reexports of certain encryption items under License Exception ENC that are neither publicly available nor eligible for mass market treatment. These rule changes took effect on December 9, 2004. Also, while this is a final rule, the BIS added that "comments on this rule are welcomed on an ongoing basis." See, Federal Register, December 9, 2004, Vol. 69, No. 236, at Pages 71356-71364.

The House will next meet on January 4, 2004 at 12:00 NOON. See, Republican Whip Notice.

The Senate will next meet on January 4, 2005 at 12:00 NOON.

The Supreme Court will next meet on Monday, January 10, 2005. See, Order List [9 pages in PDF] at page 9.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding the FIPS 201 and SP 800-73 public drafts. See, document [91 pages in PDF] titled "Federal Information Processing Standard 201 (FIPS 201), Personal Identity Verification for Federal Employees and Contractors", and document [99 pages in PDF] titled "Special Publication 800-73 (SP 800-73), Integrated Circuit Card for Personal Identity Verification". Submit comments to DraftFips201@nist.gov.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

Christmas.

EXTENDED TO JANUARY 31. Extended deadline to submit reply comments to Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112; and notice [PDF] of extended deadlines, and erratum [PDF]. See, December 22, 2004 Public Notice [PDF] (DA 04-4013) further extending the deadline for reply comments to January 31.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

12/22. The Federal Communications Commission (FCC) released a Notice of Apparent Liability for Forfeiture (NALF) [28 pages in PDF] that proposes to fine Entercom Kansas City License, the licensee of stations KQRC-FM and KFH(AM), $220,000 for willfully and repeatedly airing apparently indecent material during the broadcasts of a program titled "Dare and Murphy Show". See also, FCC release [PDF]. This NALF is FCC 04-231. FCC Commissioner Kevin Martin wrote a statement [PDF] urging a larger penalty. FCC Commissioner Michael Copps wrote a statement [PDF] that also urged a larger penalty.

12/22. The Federal Communications Commission (FCC) released an Order Granting Partial Stay [6 pages in PDF] in its proceeding titled "In the Matter of New Part 4 of the Commission's Rules Concerning Disruptions to Communications". This FCC adopted its NPRM on network outage reporting by telecommunications carriers back on February 12, 2004. This NPRM is FCC 04-30 in ET Docket No. 04-35. The FCC adopted its Report and Order at its August 4, 2004 meeting. It released this R&O on August 19, 2004. It is FCC 04-188. This R&O mandates network outage reporting, and extends reporting obligations to wireless and satellite providers, as well as wireline and cable providers. The just released FCC order stays paragraph 134 "pending resolution of our investigation into the matters discussed hereinabove". This paragraph pertains to DS3 and Synchronous Optical Network (SONET) rings. It provides, in part, that "When a DS3 is part of a protection scheme such as a SONET ring, it will frequently switch to a protect-path within seconds of a failure in the primary path. The communication services being provided over the DS3 will not be immediately affected, but they will no longer be protected. Unfortunately, we have had a number of network outages reported where there are multiple failures on a SONET ring at different points in time, in one case five months after the initial failure. The second failure that occurs before the first failure is repaired causes the loss of all communications services being provided over the DS3. We therefore require that DS3s that switch to protect be counted in DS3 outage minutes until such time as the DS3s are restored to normal service, including protection. ... Protected communications services are not restored to normal until both the primary and protect DS3s operate properly. In this same regard, if protection DS3s should fail while the primary DS3s are still working, services would not be immediately affected but the failed DS3 minutes are still counted toward the reportable trigger due to the loss of protection."  See also, story titled "FCC Adopts R&O and FNPRM Regarding Reporting of Network Outages" in TLJ Daily E-Mail Alert No. 954, August 6, 2004.

12/22. The Federal Communications Commission (FCC) extended the deadline for submitting reply comments in response to the FCC's Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] regarding use by unlicensed devices of broadcast television spectrum where the spectrum is not in use by broadcasters. The deadline had been December 30. The new deadline is January 31, 2005. See also, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004, and story titled "FCC Releases NPRM Regarding Unlicensed Use of TV Spectrum" in TLJ Daily E-Mail Alert No. 905, May 26, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and No. 02-380. See, notice (setting original deadlines) in the Federal Register, June 18, 2004, Vol. 69, No. 117, at pages 34103-34112; first notice [PDF] of extended deadlines; erratum [PDF]; and December 22, 2004 Public Notice [PDF] (DA 04-4013) further extending the deadline for reply comments to January 31.

12/22. The Federal Communications Commission (FCC) released an order [PDF] that extends the deadline for filing first round DTV channel election forms to January 27, 2005. This proceeding is titled "In the matter of Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion To Digital Television". This is MB Docket No. 03-15. See also, Public Notice [PDF].

12/22. The Federal Communications Commission (FCC) filed its Opposition to Petition for Issuance of Writ of Mandamus [22 pages in PDF] with the U.S. Court of Appeals (DCCir) in In Re Paxson. Paxson's petition pertains to multicasting, dual carriage of analog and digital signals, and the FCC's DTV must carry proceeding. The FCC argues that a writ of mandamus is an inappropriate remedy. This case is In re Paxson Communications Corp., U.S. Court of Appeals for the District of Columbia, App. Ct. No. 04-1290.

12/22. The U.S. Court of Appeals (10thCir) issued its opinion in Donchez v. Coors, a state service mark and Lanham Act case in which the Appeals Court affirmed the District Court's judgment for Coors Brewing Company. Bob Donchez complained that Coors' use of the word "beerman" in TV commercial infringed his state service mark, "Bob the Beerman".

Bob Donchez has sold beer in the stands at baseball games in Denver, Colorado. He also sold beer at other athletic events, published a book [Amazon sales rank number 1,393,103] titled "A view from the stands: A season with Bob the Beerman". He also starred in a video of the same nature.

Donchez also filed for service mark protection for the "Bob the Beerman" character in the state of Colorado. Colorado registered the mark under the class of "Education and Entertainment Services" in 1993.

Coors, a large national beer brewery, subsequently produced and published television advertisements that featured scenes in the stands of athletic events at which sports fans order Coors beer from a vendor whom they addressed as "beerman" or "beerstud".

In1999 Donchez filed a complaint in the U.S. District Court (DColo) against Coors and its advertising agency alleging violation of the common law right of publicity, service mark infringement under Colorado law, common law service mark infringement, unfair competition in violation of the Lanham Act, violation of the Colorado Consumer Protection Act, unjust enrichment, and unfair misappropriation and exploitation of business value. The District Court granted summary judgment to the defendants on all claims. Donchez appealed.

The Court of Appeals affirmed. The opinion contains a lengthy analysis of the Lanham Act unfair competition claim, including a discussion of descriptive and generic marks, acquisition of secondary meaning, and use of evidence in summary judgment proceedings on Lanham Act claims.

This case is Robert Donchez v. Coors Brewing Company and Foote, Cone & Belding Advertising, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 03-1462, an appeal from the U.S. District Court for the District of Colorado, D.C. No. 99-RB-558. Judge Briscoe wrote the opinion of the Court of Appeals, in which Judges Hartz and McConnell joined.

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