9/1. The Senate Judiciary Committee (SJC) announced the tentative witness list for the hearing on the confirmation of Judge John Roberts to be a Justice of the Supreme Court.

The list currently includes three presenters and fourteen witnesses on six panels. At least three witnesses have yet to be named. One thing that is notable about the list is that it includes several attorneys who focus on technology related areas of law.

One witness is Christopher Yoo, a professor at Vanderbilt Law School, who has taught copyright law, intellectual property law, mass media law, and telecommunications law. He has also written extensively about network neutrality. He previously worked at Hogan & Hartson, which was Roberts' firm.

Another witness is Patricia Bellia, a professor at Notre Dame Law School, who teaches internet law and electronic surveillance law. She previously worked in the DOJ's Office of Legal Counsel (OLC) during the Clinton administration, where she worked on high-tech crime issues.

More recently, Bellia, along with Ohio State law professor Peter Swire, represented Sen. Patrick Leahy (D-VT), the ranking Democrat on the SJC, in his submission of an amicus curiae brief [22 pages in PDF] in US. v. Councilman. See, story titled "1st Circuit Issues En Banc Opinion in Councilman Case", story titled "So, Just What Are All These Statutory Sections Cited in the Councilman Case?", and story titled "US v. Councilman and VOIP Communications", all in TLJ Daily E-Mail Alert No. 1,194, August 12, 2005.

Another witness is Catherine Stetson, a partner in the Washington DC office of the law firm of Hogan & Hartson. She worked for him on appellate litigation. Her experience includes patent appeals. She worked with Roberts on Litton Systems v. Honeywell. See, opinion at 238 F.3d 1376 (FedCir 2001). Roberts and Stetson also represented Litton Systems as an amicus in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Ltd., the landmark case on the doctrine of equivalents.

Yoo and Bellia are scheduled to testify on panel 5. Stetson is scheduled for panel 3.

8/29. The U.S. Court of Appeals (11thCir) issued its opinion [20 pages in PDF] in Andrx Pharmaceuticals v. Elan, a drug patent law and antitrust law case involving the right to manufacture and sell the drug naproxen.

Elan was the owner of U.S. Patent No. 5,637,320, a drug patent for controlled release naproxen. In 1998, SkyePharma filed an abbreviated new drug application (ANDA) with the Food and Drug Administration (FDA) to manufacture and sell a generic version. Elan filed a complaint in U.S. District Court against SkyePharma alleging patent infringement. SkyePharma and Elan settled that action, with SkyePharma admitting infringement, and licensing from Elan.

Elan filed a complaint in U.S. District Court against Andrx alleging patent infringement.

Andrx filed a complaint in U.S. District Court against Elan alleging violation of antitrust laws. The gist of its argument is that pursuant to 21 U.S.C. § 355, Elan's settlement with SkyePharma gave SkyePharma an exclusive 180 day period to market the generic version of the drug. But, Andrx alleged, SkyePharma had no intention of marketing the drug, thus never triggering the 180 day period, leaving Elan with no generic competition. Andrx asserted that Elan brought its patent infringement actions to improperly protect its monopoly on the market for a controlled release naproxen.

The District Court held that the Noerr-Pennington doctrine immunized Elan from the maintenance of an antitrust suit based on the allegations Elan engaged in patent infringement proceedings to improperly protect its monopoly on the market for controlled release naproxen. The District Court also held that Andrx's allegations regarding a licensing agreement entered into by Elan and another competitor to settle a separate infringement suit were insufficient to support an antitrust action under the Sherman Antitrust Act, 15 U.S.C. §§ 1 and 2.

This appeal followed. The Court of Appeals affirmed the District Court on the Noerr-Pennington doctrine issue, but reversed on the settlement and licensing issue.

This case is Andrx Pharmaceuticals, Inc. v. Elan Corporation, PLC and SkyePharma, Inc., App. Ct. No. 03-13605, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 00-03481-CV-AJ. Judge Birch wrote the opinion of the Court of Appeals, in which Judges Wilson and Dowd joined.

8/29. The Progress and Freedom Foundation (PFF) released a paper [PDF] titled "Testing ``Media Monopoly´´ Claims: A Look at What Markets Say". The authors are Adam Thierer (PFF) and Daniel English. They argue that the proponents of government limitations on media ownership engage in sloppy competition analysis. They also offer their own evidence of increasing competition in the media marketplace -- declining market capitalizations of major media companies.

Thierer and English write that "the critics never seem able to arrive at any sort of a consensus about how many companies they are talking about." They argue that there is not problem with concentration. "We have moved from an age of scarcity to an age of abundance; a world of unprecedented media availability and diversity in which citizens can access and consume whatever media they want, wherever, whenever, and however they want."

To support their argument, they examine the changes in stock prices over the last five years of Time Warner, Viacom, News Corp., Comcast, and Clear Channel, and find that they have lost a combined 52 percent of their value. Thierer and English argue that this demonstrates that these media companies are not monopolists.

They state that the old media companies "face cutthroat competition in a world where rapid-fire technological innovation and convergence are upending the way business has traditionally been done, just as Redstone pointed out to his investors. The competition for our eyes and ears has never been more intense than it is today. The deluge of new information and entertainment sources is giving traditional media operators serious heartburn. Moreover, these new outlets and technologies not only offer more media diversity for consumers, but they provide a powerful check on the market power of traditional operators. This is reflected in the mediocre stock results depicted above."

See also, Thierer's book titled "Media Myths: Making Sense of the Debate over Media Ownership", released in June of 2005. It is available in paper from Amazon, or in digital format [176 pages in PDF] from the PFF.

9/1. Gerald Masoudi was named Deputy Assistant Attorney General in charge of International, Policy, and Appellate Matters in the Department of Justice's (DOJ) Antitrust Division. Thomas Barnett is the acting Assistant Attorney General. Masoudi is currently Deputy Chief Counsel at the Food and Drug Administration (FDA). Before that, he was a partner in the Washington DC office of the law firm of Kirkland & Ellis. And, he is a former law clerk to Judge Frank Easterbrook. See, DOJ release.

9/1. The Federal Communications Commission (FCC) announced the membership of its just created task force on VOIP E911 enforcement. The ten members are Gary Klug (Colorado Public Utilities Commission), Robert Mayer (New York State Department of Public Service), Jeff Richter (Public Service Commission of Wisconsin), Eddie Roberson (Tennessee Regulatory Authority), Steve Wilt (Oklahoma Corporation Commission), Joseph Casey (Chief of the FCC's Enforcement Bureau's Spectrum Enforcement Division), Colleen Heitkamp (Chief of the FCC's EB's Telecommunications Consumers Division), Sue McNeil (acting Deputy Bureau Chief of the FCC's Consumer & Governmental Affairs Bureau), Louis Sigalos (Chief of the FCC's CGAB's Consumer Affairs and Outreach Division), and Julie Veach (acting Chief of the FCC's Wireline Competition Bureau's Competition Policy Division). This task force is made up entirely of government regulators. There is no representation of technologists, VOIP users, VOIP service providers, of other technology entities.

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Notices & Disclaimers
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The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

Deadline for the public to submit written comments to the House Ways and Means Committee's Subcommittee on Trade regarding technical corrections to U.S. trade laws and miscellaneous duty suspension bills. See, notice.

The National Gallery of Art (NGA) will begin an exhibition of technological advances in the storage and transfer of information in 15th Century. It is titled "The Origins of European Printmaking: 15th Century Woodcuts and Their Public". See, NGA notice and notice in the Federal Register, July 20, 2005, Vol. 70, No. 138, at Page 41808. This exhibition will run from September 4 through November 27, 2005. Location: NGA, between the Mall and Constitution Ave., NW, and between 3rd and 7th Streets.

Labor Day.

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

The House will return from its August recess. See, House calendar.

The Senate will return from its August recess. See, Senate calendar.

TIME? The New America Foundation will host a conference titled "Terrorism, Security and America's Purpose: Towards a More Comprehensive Strategy". See, notice. Location: Capital Hilton Hotel, 1001 16th Street, NW.

1:30 PM. The Senate Judiciary Committee will begin its hearings on the nomination of Judge John Roberts to be a Justice of the Supreme Court. Location: Room 216, Hart Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding off-axis equivalent isotropically radiated power (EIRP) method for reviewing earth station applications in the fixed satellite service (FSS). See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33426 - 33429. This NPRM is FCC 05-62 in IB Docket No. 00-248.

Deadline to submit written comments to the U.S. Trade Representative (USTR) to assist it in preparing its annual report to the Congress regarding the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, notice in the Federal Register, August 3, 2005, Vol. 70, No. 148, at Pages 44714 - 44715.

Deadline to submit comments to the General Services Administration (GSA) regarding its proposal to establish a common infrastructure for electronically authenticating the identity of users of federal e-government services governmentwide. The GSA has named this the "E-Authentication Federation" and the "Service Component". See, notice in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Pages 45391 - 45394.

10:00 AM. The House Judiciary Committee will meet to mark up two bills, one of which is HR __, a bill to impose additional fees with respect to immigration services for intracompany transferees. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in NCube v. Seachange International, No. 03-1341. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 201.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Understanding the Impact of Merck v. Integra". The speaker will be Joseph Contrera (Jacobson Holman). See, Supreme Court's June 16, 2005 opinion [17 pages in PDF] and story titled "Supreme Court Rules on Research Exemption to Patent Infringement" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005. The price to attend ranges from $70-$125. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

The National Music Publishers' Association (NMPA), the National Academy of Recording Arts and Sciences (NARAS) and over other music industry organizations will host Recording Arts Day on Capitol Hill. For more information, contact 202 662-1285 or aprilc at grammy dot com.

Deadline to submit reply comments to the Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding preregistration of unpublished works provision under the Artists' Rights and Theft Prevention Act (ART Act). See, notice in the Federal Register, July 22, 2005, Vol. 70, No. 140, at Pages 42286 - 42292. See also, story titled "Copyright Office Commences Rulemaking on Preregistration of Unpublished Works" in TLJ Daily E-Mail Alert No. 1,181, July 25, 2005.

EXTENDED FROM AUGUST 8. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to it notice of proposed rulemaking (NPRM) regarding low power FM rules. The FCC adopted its order and NPRM on March 16, 2005, and released it on March 17, 2005. It is FCC 05-75 in MM Docket No. 99-25. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39217 - 39227. See also, FCC notice [PDF] extending the deadlines.

8:00 AM - 4:30 PM. Day one of a two day public workshop hosted by the Department of Homeland Security's (DHS) Privacy Office titled "Privacy and Technology: Government Use of Commercial Data for Homeland Security". See, notice in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Pages 45408 - 45409. Location: auditorium at the DHS offices at the GSA Regional Headquarters Building, 7th and D Streets, SW.

10:00 AM. The House Judiciary Committee's Subcommittee on Immigration, Border Security, and Claims will hold a partially closed hearing titled "Sources and Methods of Foreign Nationals Engaged in Economic and Military Espionage". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:30 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet. See, notice in the Federal Register, August 15, 2005, Vol. 70, No. 156, Page 47875. Location: boardroom, National Academy of Sciences, 2100 C St., NW.

11:00 AM. The House Commerce Committee's (HCC) Subcommittee on Environment and Hazardous Materials will hold a hearing titled "Electronic Waste: An Examination of Current Activity, Implications for Environmental Stewardship, and the Proper Federal Role". The hearing will be webcast by the HCC. See, notice. Location: Room 2322, Rayburn Building.

1:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled "Review of U.S. Patent and Trademark Office operations, including analysis of Government Accountability Office, Inspector General, and National Academy of Public Administration Reports". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 1 (Terrestrial and Space Science Services) will meet. See, notice [PDF]. Location: FCC, 445 12th Street, SW, 6th Floor South Conference Room (6-B516).

Deadline for the Federal Communications Commission (FCC) to submit a report to the Congress on competition in the multichannel video programming distribution market. This is MB Docket No. 05-28.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Advisory Group. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

Deadline to submit comments to the Interim Chief Copyright Royalty Judge, on behalf of the Copyright Royalty Board, regarding the existence of controversies to to the distribution of the 2001, 2002 and 2003 satellite royalty funds. See, notice in the Federal Register, August 9, 2005, Vol. 70, No. 152, at Page 46193 - 46194.

8:30 AM - 12:30 PM. Day two of a two day public workshop hosted by the Department of Homeland Security's (DHS) Privacy Office titled "Privacy and Technology: Government Use of Commercial Data for Homeland Security". See, notice in the Federal Register, August 5, 2005, Vol. 70, No. 150, at Pages 45408 - 45409. Location: auditorium at the DHS offices at the GSA Regional Headquarters Building, 7th and D Streets, SW.

1:30 - 3:30 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 2: Satellite Services and HAPS will meet. See, notice [PDF] Location: Leventhal Senter & Lerman, 2000 K Street, NW, 7th Floor Conference Room.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of second further proposed rulemaking regarding horizontal and vertical cable ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, original notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687. See also, notice of extension of deadlines, in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38848 - 38849.