10/4. Sprint Communications Company, a subsidiary of Sprint Nextel, filed a complaint [PDF] in U.S. District Court (DKan) against Vonage Holdings Corp., Voiceglo Holdings Inc. and theglobe.com Inc. alleging infringement of seven patents pertaining to VOIP and other technology.

The complaint alleges infringement the following patents:
 • U.S. Patent No. 6,304,572 titled "Method, System and Apparatus for Telecommunications Control".
 • U.S. Patent No. 6,633,561 titled "Method, System and Apparatus for Telecommunications Control".
 • U.S. Patent No. 6,463,052 titled "Method, System and Apparatus for Telecommunications Control".
 • U.S. Patent No. 6,452,932 titled "Method, System and Apparatus for Telecommunications Control".
 • U.S. Patent No. 6,473,429 titled "Broadband Telecommunications System".
 • U.S. Patent No. 6,298,064 titled "Broadband Telecommunications System".
 • U.S. Patent No. 6,665,294 titled "Broadband Telecommunications System".

Sprint stated in a release that "The patents protect a series of innovations that enable the processing and delivery of packetized voice and data communications, including Voice over Internet Protocol (“VoIP”) communications."

Sprint seeks injunctive relief and damages.

Sprint is represented by Trent Webb of the Kansas City office of the law firm of Shook Hardy & Bacon.

This case is Sprint Communications Company v. Vonage Holding Corp., et al., U.S. District Court for the District of Kansas, D.C. No. 05-2433 JWL.

10/3. The Supreme Court denied certiorari, without opinion, in Nancey Silvers v. Sony Pictures Entertainment, a case regarding whether copyright infringement actions can be assigned. See, Order List [84 pages in PDF], at page 20.

This order denies a petition for writ of certiorari to the U.S. Court of Appeals (9thCir). On March 25, 2005, an en banc panel issued its divided opinion [57 pages in PDF] holding that an accrued action for copyright infringement cannot be assigned. See also, story titled "9th Circuit En Banc Panel Holds That Copyright Infringement Actions Cannot Be Assigned" in TLJ Daily E-Mail Alert No. 1,104, March 28, 2005. The Supreme Court's denial lets stand the opinion of the Court of Appeals.

Earlier, a three judge panel of the Court of Appeals, like the U.S. District Court (CDCal), held that the action could be assigned. The opinion of the three judge panel is reported at 330 F.3d 1204. See also, story titled "9th Circuit Rules That An Accrued Cause of Action for Copyright Infringement May Be Assigned" in TLJ Daily E-Mail Alert No. 673, June 4, 2003.

The Supreme Court number is 04-1738. See, Supreme Court docket. The Court of Appeals number is App. Ct. No. 01-56069. The District Court number is D.C. No. CV-00-06386-SVW.

10/3. The Supreme Court denied certiorari in Southco v. Kanbridge, a copyright case involving copyrightable subject matter. See, Order List [84 pages in PDF], at page 14. This lets stand the holding of the Third Circuit that product part numbers, even rules based numbering systems that convey information about products, are not subject to copyright protection.

On December 3, 2004, the U.S. Court of Appeals (3rdCir) issued its divided en banc opinion [40 pages in PDF]. The issue is what constitutes sufficient originality to be protected by copyright. Southco claimed copyright in the serial numbers that it assigns to the parts that it manufacturers. Southco used four part numbers that not only identify the product, but also convey information about the product. Kanebridge copied Southco's numbering system and numbers.

This case goes to what rules based expression satisfies the originality requirement of the Copyright Act. Ideas, no matter how creative, cannot be protected by copyright. Expression can be protected by copyright. In this case the majority of the 3rd Circuit's en banc panel held that all of the creativity came in the creation of the rules (an idea) for assigning numbers. The numbers themselves (expression) are entirely dictated by the rules, and hence involve no creativity, or originality. Thus, they are not entitled to protection. The dissent argued that the majority unreasonably pushes all of the creativity and originality to the ideas side of the idea expression dichotomy, and threatens to remove the incentive to create rules based expression.

The Solicitor General took no position on the petition for writ of certiorari. However, the U.S. filed an amicus curiae brief with the Court of Appeals on May 23, 2003 arguing that part numbers are not subject to copyright protection.

This brief listed as counsel of record senior attorneys at the Copyright Office (David Carson, Jule Sigall and Steven Tepp), the U.S. Patent and Trademark Office (James Toupin, John Whealan, and Thomas Krause), and the Department of Justice's Antitrust Division (Hewitt Pate and others).

See, story titled "3rd Circuit Opines on Copyright Originality Requirement and Rules Based Expression" in TLJ Daily E-Mail Alert No. 1,042, December 22, 2004.

This Supreme Court case is Southco, Inc. v. Kanbridge Corp., No. 04-1459. See also, Supreme Court docket. This Court of Appeals number is 02-1243. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 99-cv-04337, Judge Norma Shapiro presiding.

On December 8, the Appeals Court issued a correction [2 pages in PDF]. On December 13, the Appeals Court issued a second correction [2 pages in PDF]. Both corrections pertain to identifying which judges joined in which portions of the majority opinion.

10/3. The Supreme Court denied certiorari in Stainless Systems Inc. v. Nextel West Corp., a case involving billing disputes between wireless carriers and their customers. See, Order List [84 pages in PDF], at page 18. This lets stand the opinion [21 pages in PDF] of the U.S. Court of Appeals for the 8th Circuit. The Supreme Court number is 04-1641. See also, Supreme Court docket. The Court of Appeals number is 04-2298 . The trial court was the U.S. District Court for the Western District of Missouri.

10/3. The Supreme Court denied certiorari in PMI Photomagic, Ltd. v. Foto Fantasy, Inc., No. 04-1646. See, Order List [84 pages in PDF], at page 18. See also, Supreme Court docket.

10/4. The Department of Justice's (DOJ) Antitrust Division filed an amended complaint in U.S. District Court (NDIll) against the National Association of Realtors (NAR). On September 8, 2005, the DOJ filed its original complaint alleging violation of federal antitrust laws in connection with its obstruction of real estate brokers who use internet tools to offer services to consumers.

The one count complaint alleges violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. The DOJ seeks to enjoin the NAR "from maintaining or enforcing a policy that restrains competition from brokers who use the Internet to more efficiently and cost effectively serve home sellers and buyers, and from adopting other related anticompetitive rules". See, story titled "DOJ Sues National Association of Realtors for Obstructing Internet Based Brokers" in TLJ Daily E-Mail Alert No. 1,210, September 9, 2005.

The NAR changed its rules. However, the DOJ's amended complaint adds that the NAR's rules still obstruct internet based real estate brokers.

Bruce McDonald, a Deputy Assistant Attorney General in the Antitrust Division, stated in a release that "Last-minute changes by NAR did not fix the anticompetitive problems of its policy ... When buying and selling a home, consumers should receive the full benefits of competition -- better services and lower costs. NAR's modified policy continues to prevent consumers from realizing these benefits."

The NAR has not yet filed an answer. It did issue in a release on October 5 in which it said that "it has no plans to settle the case".

The NAR is represented by Jack Bierig of the Chicago office of the law firm of Sidley Austin Brown & Wood.

This case is U.S.A. v. National Realtors Association, U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 05C-5140, Judge Filip presiding.

10/5. The U.S. Court of Appeals (2ndCir) issued another opinion [6 pages in PDF] in Nokia v. Uzan. In this opinion the Court of Appeals dismissed the defendants' appeal. It wrote that the issues raised in the present appeal "were ripe for review on a prior appeal that they took from the underlying order imposing the sanction contained in the contempt judgment. Because those arguments were not raised on the prior appeal, we deem them waived and grant plaintiff’s motion to dismiss this appeal."

See also, the 2nd Circuit's prior opinions, reported at 388 F.3d 39 and 322 F.3d 130.

See also, stories titled "Supreme Court Denies Certiorari in Uzan v. Motorola" in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005; "2nd Circuit Rules in Motorola v. Uzan" in TLJ Daily E-Mail Alert No. 1,008, November 1, 2004; "Judge Awards Motorola $4,265,793,811.32 From Turkish Telecom Deadbeats" in TLJ Daily E-Mail Alert No. 709, August 1, 2003; and "Motorola & Nokia Sue Turkish Cellular Company for RICO Violations and Computer Hacking" in TLJ Daily E-Mail Alert No. 357, January 30, 2002.

This case is Nokia Corporation v. Kemal Uzan, et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 05-0938-cv, an appeal from the U.S. District Court for the Southern District of New York.

10/5. The European Commission (EC) announced that it appointed Neil Barrett to be the Monitoring Trustee "who will provide technical advice to the Commission on issues relating to Microsoft’s compliance with the Commission’s 2004 Decision". See, EC release.

He has worked as a book author, professor, and expert witness.

The EC announced its Commission Decision [302 pages in PDF] on March 24, 2004, and released it on April 22, 2004. The EC fined Microsoft 497,196,304 Euros, and ordered it to sell Windows without Media Player and make certain intellectual property available to competitors. The provisions regarding the Monitoring Trustee are addressed at pages 289-291.

The 2004 Decision states that "The primary responsibility of the Monitoring Trustee should be to issue opinions, upon application by a third party or by the Commission or sua sponte¸ on whether Microsoft has, in a specific instance, failed to comply with this Decision, or on any issue that may be of interest with respect to the effective enforcement of this Decision."

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

Hewitt Pate, then the chief U.S. antitrust enforcer, frequently criticized the EC's decision. See for example, stories 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; "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004; and "Pate Addresses US EU Differences on Antitrust, Microsoft, and IPR" in TLJ Daily E-Mail Alert No. 913, June 8, 2004.

10/5. The Senate Foreign Relations Committee approved, by unanimous voice vote, the nominations of Robert Mosbacher (to be President of the Overseas Private Investment Corporation), Jan Boyer (US. Alternate Executive Director of the Inter-American Development Bank), Boyden Gray (Representative of the United States of America to the European Union), Josette Shiner (US Alternate Governor of the International Bank for Reconstruction and Development, and other positions), and others. See, release.

10/5. Courtney Elwood was named Deputy Chief of Staff at the Department of Justice (DOJ). See, DOJ release. She replaces Kyle Sampson, who was named the DOJ Chief of Staff in August. See, DOJ release. Elwood was Counselor to Attorney General Alberto Gonzales. Before that, she was Deputy Counsel to the Vice President Dick Cheney. Before that, she was an Associate Counsel to President Bush. Before that, she worked for the Washington DC telecommunications law firm of Kellogg Huber. She also clerked for former Chief Justice William Rehnquist, and for Judge Michael Luttig of the U.S. Court of Appeals (4thCir). While at Kellogg Huber, Elwood represented SBC in telecommunications matters. She also worked on Lexecon's successful suit against the class action law firm of Milberg Weiss for abuse of process. She also represented Terry Lenzner in Alexander v. FBI (USDC, DC, 96-2123 & 97-1288). Lenzner, in an unrelated matter, was Larry Ellison's garbage collector. See, TLJ story titled "Oracle Admits Hiring Investigators who Sought Trash of Pro-Microsoft Groups", June 28, 2000.

10/4. Sen. Ted Stevens (R-AK) gave a speech to the Association of Maximum Service Television (AMST) regarding a transition to digital television.

10/3. The Office of the U.S. Trade Representative (USTR) announced the completion of negotiations on a free trade agreement between the United States and Oman. USTR Robert Portman stated that this FTA will "provide new opportunities for U.S. service firms involved in banking and securities, telecommunications", and other services. He added that "In addition to Oman’s decision to eliminate its tariffs on U.S. products, and providing substantial market access across its entire services regime, this agreement will also ensure a secure, predictable legal framework for U.S. investors operating in Oman, provide for effective enforcement of labor and environmental laws, and protect intellectual property." See, statement.

The House will meet at 10:00 AM for legislative business. It will consider, pursuant to a rule, the conference report on HR 2360, the "Department of Homeland Security Appropriations Act for Fiscal Year 2006". See, Republican Whip Notice.

The Senate will meet at 9:30 AM. It will resume consideration of HR 2863, the defense appropriations bill.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of Timothy Flanigan to be the Deputy Attorney General, and Susan Neilson to be a Judge of the U.S. Court of Appeals (6thCir). The agenda also includes numerous bills related to personal data and privacy, including S 1789, the "Personal Data Privacy and Security Act of 2005", and S 751, the "Notification of Risk to Personal Data Act", and S 1326, the "Notification of Risk to Personal Data Act". The agenda also includes two bills pertaining to trademark protection, S 1095, the "Protecting American Goods and Services Act of 2005", and HR 683, the "Trademark Dilution Revision Act of 2005". The agenda also includes S 443, the "Antitrust Criminal Investigative Improvements Act of 2005". The SJC frequently cancels or postpones meetings without notice. The SJC rarely follows its published agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing titled "A Review of the CFIUS Process for Implementing the Exon-Florio Amendment". The secretive Committee on Foreign Investments in the U.S. (CFIUS) is the instrument by which the federal government blocks foreign investment in, and acquisition of, certain technology companies. See, notice. Location: Room 538, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch titled "FCC Wireline Broadband Order". The speakers will be Jack Zinman (SBC Services), Michael Schooler (National Cable & Telecommunications Association), and others. Location: Hogan and Hartson, 555 13th Street, NW, lower level.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "FCC’s E-rate Plans to Assist Gulf Coast Recovery: Ensuring Effective Implementation". The hearing will be web cast by the HCC. See, notice. Press contact: Larry Neal (Barton) at 202 225-5735. Location: Room 2123, Rayburn Building.

2:00 PM. The U.S. Court of Appeals (FedCir), sitting en banc, will hear oral argument in Motion Systems Corporation v. George Bush, No. 04-1428. This case involves the authority of the Court of International Trade to review orders of the President. The sua sponte order [PDF] designating en banc hearing requests briefing on the following issues: "(1) Is the President an "officer" under the terms of 28 U.S.C. § 1581(i) and is the President's action under 19 U.S.C. § 2451 subject to judicial review in a suit against the President? See Franklin v. Massachusetts, 505 U.S. 788 (2000); Mississippi v. Johnson, 71 U.S. 475 (1866). (2) Is there any constitutional barrier that would preclude the Court of International Trade from issuing the requested injunctive relief against the President? See Franklin v. Massachusetts, 505 U.S. 788 (2000); Dalton v. Spector, 511 U.S. 462 (1994); Mississippi v. Johnson, 71 U.S. 475 (1866). (3) Should Corus Group PLC v. Int'l Trade Comm'n., 352 F.3d 1351 (Fed. Cir. 2003) be overruled en banc insofar as it holds that § 1581(i) does not authorize relief against the President? (4) Under the terms of § 1581(i) and § 2451, is the relief requested against the United States Trade Representative available in this case?" Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 201.

2:30 PM. The Senate Judiciary Committee (SJC) may hold a hearing on pending Department of Justice nominations. The agenda includes consideration of Thomas Barnett (to be Assistant Attorney General in charge of the Antitrust Division), Wan Kim (AAG, Civil Rights Division), and Steven Bradbury (AAG, Office of Legal Counsel). The SJC rarely follows its announced agenda.
The SJC frequently cancels of postpones hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Finance Committee's Subcommittee on International Trade will hold a hearing on the U.S.-Bahrain Free Trade Agreement. Location: Room 215, Dirksen Building.

4:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) will hold an oversight hearing titled "Improving Federal Court Adjudication of Patent Cases". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

7:00 PM. The National Press Club's (NPC) Photography Committee will host a panel discussion titled "Copyright and the Internet -- What You Can Use and How to Protect Your Work". The speakers will be Sherrese Smith (Washington Post attorney), Lorraine Woellert (Business Week journalist), Stephen Brown (photojournalist), and Joy Chambers (attorney). The event is free, but reservations are required. Phone 202 662-7501. For more information, contact Joy Chambers at 703 864-1945 or Marshall Cohen at 202 364-8332. Location: White Room, NPC, 529 14th St. NW, 13th Floor.

Day one of a two day conference titled "Identity Management: Creating A Trusted Identity" hosted by the Information Technology Association of America (ITAA). See, notice. For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Hyatt Regency, Crystal City, VA.

Deadline to submit reply 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.

The House will meet at 9:00 AM for legislative business. It will consider, pursuant to a rule, HR 3893, the "Gasoline for America's Security Act of 2005". See, Republican Whip Notice.

9:00 AM - 5:00 PM. The National Institute of Standards and Technology (NIST) will hold a workshop on the security of electronic voting systems. See, notice in the Federal Register, September 9, 2005, Vol. 70, No. 174, at Pages 53635 - 53636. Location: NIST, Building 820, Room 152, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sabre v. Department of Transportation, No. 04-1073, a case regarding wether the DOT can expand its regulatory authority to include computer reservation systems (CRS). See, amicus curiae brief [25 pages in PDF] of the Competitive Enterprise Institute and the Progress and Freedom Foundation (PFF) in support of Sabre. Judge Rogers, Brown and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Committee on Homeland Security and Governmental Affairs will hold a business meeting to consider the nomination of Julie Myers to be an Assistant Secretary of Homeland Security. See, notice. Location: __.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committees will host a lunch titled "CMRS Issues". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, October 5, 2005. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW., 6th Floor.

Day two of a two day conference titled "Identity Management: Creating A Trusted Identity" hosted by the Information Technology Association of America (ITAA). See, notice. For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Hyatt Regency, Crystal City, VA.

Columbus Day.

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

Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its proposed amendment to the .NET Registry Agreement. See, notice.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. The agenda includes presentations by John Chambers (Ch/CEO of Cisco Systems) and Thomas Noonan (P/CEO of Internet Security Systems). See, notice in the Federal Register, September 2, 2005, Vol. 70, No. 170, at Pages 52420 - 52421. Location: National Press Club, 529 14th St. NW, 13th Floor.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Open Web Application Security Project regarding the OWASP. See, notice and conference web site. Location: NIST, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding proposed changes to Federal Information Processing Standard (FIPS) Publication 201, titled "Standard for Personal Identity Verification of Federal Employees and Contractors. See, notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53346 - 53347.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Open Web Application Security Project regarding the OWASP. See, notice and conference web site. Location: NIST, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Yom Kippur.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

11:00 AM - 12:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a meeting by teleconference. The first part of the meeting, which will be open to the public, will be a discussion of issues related to Hurricane Katrina. The second part of the meeting, which will be closed to the public, will be a discussion of the shutdown of cellular services in the tunnels into and out of Manhattan following the terrorist attacks in London on July 7, 2005. To participate, contact Elizabeth Hart at 703 289-5948 or hart_elizabeth at bah dot com by 5:00 PM on Tuesday, October 11, 2005. See, notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Page 56731.

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, on the existence of controversies to the distribution of the 2003 cable royalty fund. See, notice in the Federal Register, September 13, 2005, Vol. 70, No. 176, at Pages 53973 - 53974.

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