9/4. The U.S. Court of Appeals (3rdCir) issued its opinion [39 pages in PDF] in Broadcom v. Qualcomm, a case regarding whether a patent holder's deceptive conduct before a private standards development organization (SDO) may be condemned under antitrust laws, and if so, what facts must be pled to survive a Rule 12(b)(6) motion to dismiss.

Outline of Article:

1. Introduction.
2. Reaction to the Court of Appeal's Opinion.
3. District Court.
4. Court of Appeals: Holding.
5. Court of Appeals: Noerr-Pennington Doctrine.
6. Court of Appeals: Standards Development Process.
7. Court of Appeals: Patent Hold Ups.
8. Antitrust Agencies.
9. Amicus Briefs.
10. Case Information.

1. Introduction. The District Court held that deceptive conduct regarding patents in a standards determination process does not constitute a violation of antitrust law. It dismissed the complaint.

The key part of the Court of Appeals' opinion is its holding that this can violate Section 2 of the Sherman Act. It reversed reversed the judgment of the District Court on the counts alleging monopolization and attempted monopolization.

In reaching this outcome, the Court of Appeals addressed at length the economics and law of the standards determination process, patents, and antitrust. The District Court reasoned that deceptive conduct with respect to patents in the standards determination process cannot violate antitrust law because patents confer monopolies, and standards eliminate competition. The Court of Appeals rejected this reasoning. Instead, it wrote that SDOs can be pro-competitive and advance consumer welfare, and expounded reasons why.

SDOs have proceeded with the understanding that their activities are pro-competitive. Moreover, the Federal Trade Commission (FTC) and the Department of Justice's (DOJ) Antitrust Division have concluded that SDOs can be pro-competitive, and taken actions, given speeches, and issued a business review letter to this effect. The District Court's decision was in conflict. The 3rd Circuit has now issued a detailed and well reasoned opinion that rejects the District Court's approach, and sustains the approach of the SDOs and the FTC and DOJ. It is the first Court of Appeals to do so.

In addition, the holding and analysis in the Court of Appeals opinion applies to private SDOs in other industry sectors, and deceptive conduct by participants in those SDO processes.

This case involves the development of standards by the European Telecommunications Standards Institute (ETSI). The ETSI developed a mobile telephone standard known as Universal Mobile Telephone System (UMTS) for GSM path networks.

The ETSI requires a commitment from vendors (such as Qualcomm) whose technologies are included in standards to license their technologies on fair, reasonable, and non-discriminatory (FRAND) terms. Broadcom alleges in this action that Qualcomm committed to license its WCDMA technology on FRAND terms, that in reliance thereon the ETSI then included Qualcomm's technology in the UMTS standard, but that Qualcomm then licensed its technology on non-FRAND terms.

2. Reaction. David Dull, General Counsel of Broadcom, stated in a release that "We are pleased that we will get our day in court and will have the opportunity to show how Qualcomm's conduct violates our nation's antitrust laws".

He added that "We have already seen a finding of standards abuse against Qualcomm in a patent case in San Diego federal court, and are optimistic that we will prevail in New Jersey as well. We plan to return to district court and proceed to trial as soon as practicable."

Qualcomm also issued a release in which it emphasized the the Court of Appeals affirmed the dismissal of some of the other claims in the complaint.

As for the Court of Appeals reversal of the District Court as to Sections 1 and 2 of the Sherman Act, Qualcomm wrote that "the Court was required by settled procedural rules to accept as true at this stage of the case all allegations made by Broadcom in its complaint. QUALCOMM vigorously disputes Broadcom's remaining allegations and is confident that judgment will ultimately be entered in its favor on the entire complaint, including both claims reinstated by the Court of Appeals' decision."

Michael Lindsay is an attorney in the Minneapolis office of the law firm of Dorsey & Whitney and counsel for the Institute of Electrical and Electronics Engineers (IEEE). He wrote in an e-mail to TLJ that "As a leading developer of standards, the IEEE-SA is firmly committed to the integrity of the standards development process and the establishment of legal rules that protect that process.

He continued that "The IEEE-SA took no position which side was right on the facts -- Broadcom or Qualcomm. The IEEE spoke up to protect the process. As the Third Circuit recognized, the district court's analysis of the standards development process was fundamentally flawed, and it was important to the IEEE and the other amici -- and indeed to the entire standards community to get that view corrected."

Lindsay added that "Standards development involves making technical choices, and some of the available technologies may be patent protected. SDOs have rules regarding the disclosure of IP information and the declarations that IP holders are required to make. SDOs -- and standards-implementers everywhere -- need to know that the rules mean something and that the IP declarations have real force."

"The IEEE is pleased that the Third Circuit has made this clear", said Lindsay.

3. District Court. On July 1, 2005, Broadcom filed its original complaint in U.S. District Court (DNJ) against Qualcomm alleging violation of federal antitrust laws.

See, Broadcom's amended complaint [69 pages in PDF] and story titled "Broadcom Files Antitrust Complaint Against Qualcomm" in TLJ Daily E-Mail Alert No. 1,168, July 6, 2005.

Broadcom alleged, among other things, that Qualcomm, through deception of an SDO, and predatory acquisition of a potential rival, monopolized certain markets for cellular telephone technology and components, and violated Sections 1 and 2 of the Sherman Act and Sections 3 and 7 of the Clayton Act.

Section 1 is codified at 15 U.S.C. § 1.

Section 2 is codified at 15 U.S.C. § 2. It provides, in part, that "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished".

The complaint also alleged violation of various state and common-law claims arising out of the same set of facts.

The District Court dismissed the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.

The gist of the District Court's reasoning on the Section 2 monopolization and attempted monopolization claims (counts one and two of the complaint) was that these allegations do not state a claim because conferring monopolies is what patents do, and eliminating competition is what standards do.

The Court of Appeals offered this summary of the District Court's reasoning. "In dismissing Broadcom’s claim of monopolization in the WCDMA technology markets, the Court reasoned that Qualcomm enjoyed a legally-sanctioned monopoly in its patented technology, and that this monopoly conferred the right to exclude competition and set the terms by which that technology was distributed." It "concluded that the inclusion of Qualcomm’s WCDMA technology in the UMTS standard did not harm competition because an absence of competition was the inevitable result of any standard-setting process. That inclusion of Qualcomm’s technology may have been the product of deception was of no moment under antitrust law, the Court continued, because no matter which company's patented technology ultimately was chosen, the adoption of a standard would have eliminated competition."

The District Court dismissed all of the federal claims for failure to state a claim, and then declined to exercise supplemental jurisdiction over the state and common law claims.

Broadcom then brought the present appeal.

4. Court of Appeals: Holding. The Court of Appeals reversed the judgment of the District Court as to some of the claims, and remanded.

The Court of Appeals held that Broadcom's complaint states claims for monopolization and attempted monopolization under § 2 of the Sherman Act. Thus, claims one and two will proceed in the District Court.

The Court of Appeals held that Broadcom lacks standing to assert a claim for unlawful monopoly maintenance in a market in which it neither competes nor seeks to compete. (This is claim seven of the complaint.) The Court of Appeals also held that Broadcom failed to allege an antitrust injury sufficient to state a claim under § 7 of the Clayton Act. (This is claim eight of the complaint.)

The Court of Appeals also reinstated Broadcom's state and common law claims.

(Broadcom did not appeal the District Court's dismissal of the claims for tying and exclusive dealing.)

5. Court of Appeals: Noerr-Pennington Doctrine. The Court of Appeals rejected Qualcomm's Noerr-Pennington defense. This doctrine is derived from two opinion of the Supreme Court of the U.S., Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v. Pennington, 381 U.S. 657 (1965).

This doctrine generally allows businesses to combine and lobby to influence the legislative, executive, or judicial branches of government or administrative agencies without antitrust liability, because the First Amendment’s right of petition protects such activities.

The Court of Appeals wrote that while "firms may enjoy broad immunity from antitrust liability for concerted efforts to influence political action in restraint of trade, even when such efforts employ unethical or deceptive methods", pursuant to the First Amendment and the Noerr-Pennington doctrine, "Private standards determining organizations, in contrast to legislative or quasi legislative bodies, have historically been subject to antitrust scrutiny."

The Federal Trade Commission (FTC) reached a related conclusion in its proceeding titled "In the Matter of Union Oil Company of California" and numbered FTC Docket No. 9305.

In that proceeding Unocal, an oil company, argued that the Noerr-Pennington doctrine insulated it from antitrust liability for its making false representations to a government standards setting body regarding its patent rights.

See, FTC's order [2 pages in PDF], opinion [56 pages in PDF], and release. See also, story titled "FTC Rules Noerr-Pennington Doctrine Does Not Block Antitrust Action for False Representations Regarding Patents During Standards Setting Process" in TLJ Daily E-Mail Alert No. 933, July 8, 2004.

See also, FTC report [41 pages in PDF] titled "Enforcement Perspectives on the Noerr-Pennington Doctrine", and story titled "FTC Releases Report on Noerr Pennington Doctrine" in TLJ Daily E-Mail Alert No. 1,482, November 3, 2006.

6. Court of Appeals: Standards Development Process. The Court of Appeals concluded that SDOs can be pro-competitive and advance consumer welfare.

"The primary goal of antitrust law is to maximize consumer welfare by promoting competition among firms", wrote the Court of Appeals. "Private standard setting advances this goal on several levels. In the end-consumer market, standards that ensure the interoperability of products facilitate the sharing of information among purchasers of products from competing manufacturers, thereby enhancing the utility of all products and enlarging the overall consumer market."

"This, in turn, permits firms to spread the costs of research and development across a greater number of consumers, resulting in lower per-unit prices." In addition, "Industry-wide standards may also lower the cost to consumers of switching between competing products and services, thereby enhancing competition among suppliers."

"Standards enhance competition in upstream markets, as well. One consequence of the standard-setting process is that SDOs may more readily make an objective comparison between competing technologies, patent positions, and licensing terms before an industry becomes locked in to a standard. ... Standard setting also reduces the risk to producers (and end consumers) of investing scarce resources in a technology that ultimately may not gain widespread acceptance. ... The adoption of a standard does not eliminate competition among producers but, rather, moves the focus away from the development of potential standards and toward the development of means for implementing the chosen standard." (Parentheses in original. Citations to various amicus briefs omitted.)

The Court of Appeals concluded that "Each of these efficiencies enhances consumer welfare and competition in the marketplace and is, therefore, consistent with the procompetitive aspirations of antitrust law. ... Thus, private standard setting -- which might otherwise be viewed as a naked agreement among competitors not to manufacture, distribute, or purchase certain types of products -- need not, in fact, violate antitrust law."

Of course, the Court of Appeals added that "judicial acceptance, of private standard setting is without limits." It wrote that "conduct that undermines the procompetitive benefits of private standard setting may, at least in some circumstances, be deemed anticompetitive under antitrust law."

7. Court of Appeals: Patent Hold Ups. The Court of Appeals first identified and explained the concept of patent hold up. "An SDO may complete its lengthy process of evaluating technologies and adopting a new standard, only to discover that certain technologies essential to implementing the standard are patented. When this occurs, the patent holder is in a position to ``hold up´´ industry participants from implementing the standard. Industry participants who have invested significant resources developing products and technologies that conform to the standard will find it prohibitively expensive to abandon their investment and switch to another standard. They will have become ``locked in´´ to the standard. In this unique position of bargaining power, the patent holder may be able to extract supracompetitive royalties from the industry participants."

The Court of Appeals noted that the FTC has taken administrative action against patent holder that engage in patent hold ups.

The Court of Appeals held that Broadcom's complaint's "allegations that Qualcomm deceived relevant SDOs into adopting the UMTS standard by committing to license its WCDMA technology on FRAND terms and, later, after lock-in occurred, demanding non-FRAND royalties" are actionable.

Specifically, the Court of Appeals held that "(1) in a consensus-oriented private standard-setting environment, (2) a patent holder’s intentionally false promise to license essential proprietary technology on FRAND terms, (3) coupled with an SDO’s reliance on that promise when including the technology in a standard, and (4) the patent holder’s subsequent breach of that promise, is actionable anticompetitive conduct."

It elaborated that "Deception in a consensus-driven private standard-setting environment harms the competitive process by obscuring the costs of including proprietary technology in a standard and increasing the likelihood that patent rights will confer monopoly power on the patent holder."

That is, "Although a patent confers a lawful monopoly over the claimed invention", there may be alternative technologies, and when an SDO incorporates the patented technology into a standard, "adoption of the standard eliminates alternatives to the patented technology." Then, "The patent holder's IPRs, if unconstrained, may permit it to demand supracompetitive royalties." FRAND commitments constrain participants from demanding these supracompetitive royalties.

The Court of Appeals then addressed the allegations of Broadcom and specific statutory sections. It held that count one of the complaint states a claim for monopolization under § 2 of the Sherman Act, and that count two of the complaint states a claim for attempted monopolization under § 2.

8. Antitrust Agencies. The present action is private litigation brought under the federal antitrust laws. The opinion was issued by the federal judiciary.

In addition, various government executive entities, both inside and outside of the U.S., exercise antitrust enforcement authority. Several have taken actions, and disseminated information, regarding antitrust and SDOs.

The Department of Justice's (DOJ) Antitrust Division's (AT) most significant disclosure of its views on SDOs and the standards development process is found in its October 30, 2006, business review letter from Assistant Attorney General (AAG) Thomas Barnett to Robert Skitol, attorney for the VMEbus International Trade Association (VITA). See also, DOJ release and story titled "DOJ Approves VITA Patent Policy" in TLJ Daily E-Mail Alert No. 1479, October 31, 2006.

In addition, on January 18, 2007, Gerald Masoudi, the DOJ/AT's Deputy AAG gave a speech titled "Efficiency in Analysis of Antitrust, Standard Setting, and Intellectual Property". See also, story titled "DOJ's Masoudi Addresses Antitrust, Standard Setting and IPR" in TLJ Daily E-Mail Alert No. 1,528, January 29, 2007.

Also on January 18, 2007, the FTC's Alden Abbott gave a presentation regarding antitrust, intellectual property and standard setting. See, bullet points.

The FTC has also taken action three times in connection with deceptive conduct in standard settings. First, there was the administrative action against Unocal discussed above.

Second, there was its action against Rambus. On August 2, 2006, the FTC released its opinion [120 pages in PDF] in its administrative proceeding titled "In the Matter of Rambus, Inc." and numbered FTC Docket No. 9302.

The FTC concluded that Rambus unlawfully monopolized the markets for four computer memory technologies that have been incorporated into industry standards for dynamic random access memory (DRAM) chips.

The FTC opinion concluded that "Rambus's acts of deception constituted exclusionary conduct under Section 2 of the Sherman Act, and that Rambus unlawfully monopolized the markets for four technologies incorporated into the JEDEC standards in violation of Section 5 of the FTC Act."

Section 5 of the Federal Trade Commission Act (FTCA) which is codified at 15 U.S.C. § 45, provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." In contrast, in the present case, Broadcom v. Qualcomm, the Court of Appeals allowed Broadcom to proceed on its claims alleging violation of Sections 1 and 2 of the Sherman Act.

See also, story titled "FTC Holds That Rambus Unlawfully Monopolized Markets" in TLJ Daily E-Mail Alert No. 1,427, August 8, 2006, and story titled "FTC Files Administrative Complaint Against Rambus" in TLJ Daily E-Mail Alert No. 455, June 20, 2002.

Third, the FTC took action against Dell over ten years ago.

The Federal Communications Commission (FCC) exercises some antitrust authority, but this has been limited to review of mergers between entities that own FCC licenses. The FCC has not focused on antitrust enforcement in the context of conduct before SDOs.

And finally, the European Commission just recently instituted an action against Rambus based upon the same conduct that was the subject of the FTC action. See, story titled "European Commission Pursues Rambus Regarding JEDEC Standards Setting Process" in TLJ Daily E-Mail Alert No. 1,627, August 23, 2007.

9. Amicus Briefs. The Court of Appeals received amicus briefs from (1) SDOs, (2) Texas Instruments, Nokia and Ericsson, and (3) the American Antitrust Institute (AAI) and Consumer Federation of America (CFA).

Five SDOs -- IEEE, VITA, Organization for the Advancement of Structured Information Standards (OASIS), The Open Group, and PCI Industrial Computer Manufacturers Group (PICMG)-- submitted a joint amicus brief in which they argued that SDOs "promote competition through the creation of standards."

They wrote that "Hundreds of nonprofit standards organizations throughout the country have developed tens of thousands of standards. Each SDO is governed by its own distinct set of rules and policies aimed at ensuring fair and open standards processes. But SDOs also depend on the application of the antitrust laws to prevent the misuse of their processes for anticompetitive purposes." (Footnote omitted.)

The SDOs did not offer any conclusions regarding Qualcomm's conduct. Rather, they argued legal principles in the abstract. They wrote that "The court below fundamentally misunderstood the way that SDOs work, the significance of a patented technology's inclusion in a standard, and the role that antitrust law must play in these situations. The rule that the district court adopted -- that a deceptive licensing commitment can never constitute an antitrust violation -- is demonstrably wrong and, if adopted by this Court, would gravely threaten the standards development process."

They added that "Mere disagreement as to the reasonableness of license terms should not ordinarily provide a basis for an antitrust claim. But a blanket rule precluding antitrust liability under all circumstances is equally inappropriate."

The SDOs concluded that "where the conduct goes beyond a mere ex post disagreement over license terms and instead entails deliberate deception before the standard's adoption, antitrust liability may be warranted." (Footnote omitted.)

The AAI and CFA submitted an amicus brief [PDF] in which they urged the Court of Appeals to reversed the District Court. They wrote that "Particularly in technology industries, standard setting can produce efficiencies that lead to increased competition, lowered costs, and increased innovation and output."

The AAI and CFA wrote that "Antitrust law is well-suited to redress and deter conduct that may frustrate or delay the emergence of the procompetitive benefits of standard-setting organizations."

They argued that "the District Court's rule of law would severely restrict these types of enforcement actions and enable firms to engage in broad forms of manipulation of the standard-setting process with the knowledge that if they succeed, the establishment of the standard will provide protection from antitrust scrutiny", and thereby harm consumers.

10. Case Information. George Cary of the Washington DC office of the law firm of Cleary Gottlieb, and David Stone of Boies Schiller & Flexner, represented Broadcom in this appeal.

Evan Chesler and Richard Stark of the New York City office of the law firm of Cravath Swaine & Moore, and William O'Shaughnessy of McCarter & English, represented Qualcomm.

This case is Broadcomm Corporation v. Qualcomm, Inc., U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 06-4292, an appeal from the U.S. District Court for the District of New Jersey, D.C. Civil No. 05-cv-03350, Judge Mary Cooper presiding. Judge Barry wrote the opinion of the Court of Appeals, in which Judge Fuentes and Garth joined.

9/5. The U.S. District Court (DC) issued a Memorandum Opinion and Order [24 pages in PDF] in EPIC v. Department of Justice and ACLU v. Department of Justice, cases brought under the Freedom of of Information Act (FOIA) in connection the the Department of Justice's (DOJ) failure to produce requested records related to the government electronic surveillance program first publicly disclosed by the New York Times in December of 2005.

The U.S. government has disclosed little about this and other surveillance activities. The District Court described the subject matter of these FOIA requests as the "Bush Administration's policy of conducting surveillance of domestic communications without the prior authorization of the Foreign Intelligence Surveillance Court". Members of the Bush administration, government employees, and others sometimes refer to the "Terrorist Surveillance Program" or "TSP". DOJ officials have testified at Congressional hearings, and stated in speeches and news conferences that there is a National Security Agency (NSA) program that involves surveillance where one party to a communication is believed to be associated with terrorism, and one party to the communication is outside of the U.S. and the other is inside the U.S.

Both the Electronic Privacy Information Center (EPIC) and the American Civil Liberties Union (ACLU) submitted requests to the DOJ for records related to this program pursuant to the federal FOIA, which is codified at 5 U.S.C. § 552.

The ACLU requested any presidential orders authorizing the NSA to engage in warrantless electronic surveillance. The Court added that it also sought "records relating to the policies, practices and procedures of the NSA (1) for selecting individuals to subject to warrantless domestic surveillance; (2) for gathering, maintaining, storing, and sharing information generated through such surveillance; (3) for using gathered information as the basis for FISA requests; and (4) for consulting with, or obtaining approval from, DOJ, before engaging in warrantless electronic surveillance."

The EPIC sought, among other things, "an audit of NSA domestic surveillance activities" and "legal memoranda, opinions or statements concerning increased domestic surveillance".

The DOJ produced copies of a few documents, but claimed exemptions under the FOIA from the obligation to release documents as to the majority of the requested records. The DOJ asserted the FOIA's "national defense or foreign policy", "exempted from disclosure by statute", and "inter-agency or intra-agency memorandums or letters" exemptions.

Both the EPIC and the ACLU have filed complaints in the U.S. District Court (DC) under the FOIA. The District Court has consolidated the two actions.

The EPIC moved for an in camera review of withheld records. That is, it asked that the Judge obtain and review the records that the DOJ possesses but refuses to give to the EPIC.

The District Court denied the motion for an in camera review.

In addition, the DOJ moved for summary judgment.

The District Court granted summary judgment to the DOJ as to some of the requested records. Further, it ordered that "As to the remainder, the government must submit to the court a detailed, document-by-document Vaughn index regarding these documents, along with further, significantly more-detailed declarations justifying the various departments’ withholding decisions."

These cases are Electronic Privacy Information Center v. DOJ, D.C. No. 06-00096 (HHK), and American Civil Liberties Union v. DOJ, D.C. No. 06-00214 (HHK), Judge Henry Kennedy presiding.

9/5. Rep. Paul Gillmor (R-OH) died. He was previously a member of the House Commerce Committee (HCC) and its Subcommittee on Telecommunications and the Internet. In the 110th Congress he became the ranking Republican on the House Financial Services Committee's (HFSC) Subcommittee on Housing and Community Opportunity. See also, statement by Rep. Joe Barton (R-TX), and statement by President Bush.

9/5. Former Rep. Jennifer Dunn (R-WA) died. She was previously a member of the House Ways and Means Committee (HWMC) and its Subcommittee on Trade. She represented a Seattle area district. She advocated free trade. See also, White House release.

9/6. President Bush named Joel Scanlon to be Deputy Assistant to the President and Director of Strategic Initiatives. He was previously an Associate Director in the White House Office of Strategic Initiatives. See, White House release.

9/6. President Bush named Dianna Campagna to be Special Assistant to the President and Executive Secretary for the Office of the Counsel to the President. She previously worked for the National Legal Center for the Public Interest. See, White House release.

9/6. Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA) sent a letter [PDF] to the leaders of the House Commerce Committee (HCC), and a letter to the leaders of the Senate Commerce Committee, in which he stated that the NCTA's members "will launch this week a substantial and multifaceted consumer education campaign designed to reach all cable customers and millions of non-cable viewers with useful information" about the transition to digital television. He added that "we are making a substantial commitment to air $200 million of English and Spanish language advertising on cable and broadcast television stations and networks. That advertising campaign will start this week and will not conclude until February 2009." Rep. John Dingell (D-MI), Chairman of the HCC, responded in a release that "Ensuring a successful transition must be one of our nation's top priorities, and it is incumbent upon the government, industry and the public interest community to educate consumers about how to be prepared. Cable operators are to be commended for being at the forefront of that effort, and I would hope to see others follow their lead in short order." See also, Consumer Electronics Association (CEA) release.

9/4. The U.S. Patent and Trademark Office (USPTO) and the United Kingdom Intellectual Property Office (UKIPO) announced that they are "accepting applications for participation in a pilot Patent Prosecution Highway project established between the two offices. The Patent Prosecution Highway will leverage fast-track patent examination in both offices to allow applicants in both countries to obtain corresponding patents faster and more efficiently. It also will permit each office to benefit from work previously done by the other office, in turn reducing examination workload and improving patent quality." See, USPTO release.

8/24. The Federal Communications Commission's (FCC) Office of General Counsel (OGC) and the Department of Justice (DOJ) filed their brief [65 pages in PDF] with the U.S. Court of Appeals (DCCir) in Biggerstaff v. FCC, petitions for review of final orders of the FCC pertaining to the FCC's junk fax rules and the established business relationship exception. This case is Robert Biggerstaff, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 06-1191, 06-1192, and 06-1251.

The House will meet at 10:00 AM for legislative business. The House will consider HR  2786, the "Native American Housing Assistance and Self-Determination Reauthorization Act of 2007". See, Rep. Hoyer's calendar [PDF].

The Senate will meet at 9:30 AM. It will resume consideration of HR 2642 [LOC | WW], the Military Construction and Veterans Affairs Appropriations bill, Fiscal Year 2008.

8:30 AM - 5:15 PM. Day one of a two day meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). The agenda includes "Computer Security Division (CSD) Update", "NIST Metrics Projects Briefing", "NIST Research Priorities for the Future", "Best Practices in Security at NSA", "Telecommuting Security Issues", "OMB Privacy Update", "Privacy Technology Update", and "ISPAB Work Plan". See, notice in the Federal Register, August 24, 2007, Vol. 72, No. 164, at Page 48619. Location: Room 400, George Washington University Cafritz Conference Center, 800 21st St., NW.

9:00 AM - 5:00 PM. Day three of a three day meeting of the Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC). See, notice in the Federal Register, August 23, 2007, Vol. 72, No. 163, at Pages 48252-48253. For more information, contact Timothy Creagan at 202-272-0016 or creagan at access dash board dot gov. Location: National Science Foundation, Room 555, 4121 Wilson Boulevard, Stafford Place II, Arlington, VA.

9:30 AM. The U.S. International Trade Commission (USITC) will hold a hearing in its proceeding titled "China: Description of Selected Government Practices and Policies Affecting Decision-making in the Economy". This is Investigation No. 332-492. See, USITC release. Press contact: Peg O'Laughlin at 202-205-1819. Location: USITC, Main Hearing Room, 500 E St., SW.

10:00 AM. The House Homeland Security Committee (HHSC) will hold a hearing titled "Turning Spy Satellites on the Homeland: the Privacy and Civil Liberties Implications of the National Applications Office". The witnesses will be Charles Allen (DHS Chief Intelligence Officer), Hugo Teufel (DHS Chief Privacy Officer), Dan Sutherland (DHS Civil Rights and Civil Liberties Officer). This hearing will be webcast by the HHSC. For more information, contact Dena Graziano or Adam Comis at 202-225-9978. Location: Room 311, Cannon Building.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 1845 [LOC | WW], an untitled bill that would limit communications between the staffs of the White House and the Department of Justice (DOJ). The agenda also includes consideration of Richard Jones to be a Judge of the U.S. District Court (WDWash). It also includes consideration of Jennifer Elrod to be a Judge of the U.S. Court of Appeals (5thCir). The SJC frequently fails to obtain a quorum for its meetings. The SJC rarely follows the agendas for its meetings. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Elbex Video, Ltd. v. Sensormatic Electronics Corp., App. Ct. No. 2007-1097, an appeal from the U.S. District Court (SDNY). Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Research Corporation Technologies, Inc. v. Microsoft Corporation, App. Ct. No. 2006-1275, an appeal from the U.S. District Court (DAriz). Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The National Economists Club (NEC) will host a lunch titled "U.S. Productivity: Past, Present and Future". The speaker will be Robert Atkinson (head of the Information Technology and Innovation Foundation). Location: Chinatown Gardens Restaurant, 618 H St., NW.

1:30 PM. Frontline Wireless (FW) will host an teleconferenced event titled "media briefing". The topic will be the FCC's upcoming auction of spectrum in the 700 MHz band. The speakers will be Greg Rosston (Stanford University), Peter Cramton (University of Maryland), and Greg Waldron (Covington & Burling). FW's notice states that "Reporters who plan to dial in to the briefing should contact Mary Greczyn" at 202-371-2997 or mg at ftidc dot com.

3:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 1908 [LOC | WW] the "Patent Reform Act of 2007". Location: Room H-313, Capitol Building.

Deadline to submit comments to the Department of Education (DOE) regarding its notice of proposed rulemaking (NPRM) regarding its regulations for the Academic Competitiveness Grant (ACG) and National Science and Mathematics Access to Retain Talent Grant (National SMART Grant) programs. See, notice in the Federal Register, August 7, 2007, Vol. 72, No. 151, at Pages 44050-44065.

The House will meet at 9:00 AM for legislative business. The House will consider HR 1908 [LOC | WW] the "Patent Reform Act of 2007". See, rule for consideration, which makes in order the following amendments: manager's amendment [19 pages in PDF], Rep. Darrell Issa's (R-CA) amendment [2 pages in PDF] regarding delay in publication, Rep. Issa's amendment [PDF] regarding USPTO authority to write regulations, Rep. Sheila Lee's (D-TX) amendment [4 pages in PDF] regarding conducting a study of patent damage awards, and Rep. Pence's (R-IN) amendment [2 pages in PDF] regarding prohibiting post grant reviews based upon best mode. See, Rep. Hoyer's calendar [PDF].

8:00 AM - 4:15 PM. Day two of a two day meeting of the Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). The agenda includes "Computer Security Division (CSD) Update", "NIST Metrics Projects Briefing", "NIST Research Priorities for the Future", "Best Practices in Security at NSA", "Telecommuting Security Issues", "OMB Privacy Update", "Privacy Technology Update", and "ISPAB Work Plan". See, notice in the Federal Register, August 24, 2007, Vol. 72, No. 164, at Page 48619. Location: Room 400, George Washington University Cafritz Conference Center, 800 21st St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Systems Division, Inc. v. Teknek, App. Ct. No. 2007-1162. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The Architectural and Transportation Barriers Compliance Board will hold meetings on September 5-7, 2007. Its Electronic and Information Technology Ad Hoc Committee will meet on September 7 at 12:00 NOON. See, notice in the Federal Register, August 20, 2007, Vol. 72, No. 160, at Page 46438. Location: Madison Hotel, 1177 15th St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Cable Practice and Mass Media Committees will host a brown bag lunch titled "Consumers, Cable Operators, Broadcasters, Who's DTV Transition Is It?". The speakers will be Diane Burstein (NCTA) and David Donovan (Association for Maximum Service Television). For Further Information: Contact William Cook at William_Cook at aporter dot com, Steven Morris at Smorris at NCTA dot com, Jessica Rosenworcel at Jessica_Rosenworcel at commerce dot senate dot gov, or Ryan Wallach at rwallach at willkie dot com. RSVP to Ryan Wallach. Location: Willkie Farr & Gallagher, Suite 200, 1875 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response its Public Notice [32 pages in PDF] regarding the competitive bidding procedures for the 700 MHz band auction. The FCC released the Public Notice on August 17, 2007. It is DA 07-3415 in AU Docket No. 07-157. This auction is Auction No. 73. It is scheduled to commence on January 16, 2008. See, notice in the Federal Register, August 23, 2007, Vol. 72, No. 163, at Pages 48272-48285. See also, story titled "FCC Adopts 700 MHz Band Order" in TLJ Daily E-Mail Alert No. 1,619, July 31, 2007, and story titled "FCC Sets Date for 700 MHz Auction" in TLJ Daily E-Mail Alert No. 1,624, August, 20, 2007.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its Draft Special Publication 800-111 [37 pages in PDF] titled "Guide to Storage Encryption Technologies for End User Devices".

TIME CHANGE. 9:00 - 11:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee will meet in open session. See, original notice in the Federal Register, August 16, 2007, Vol. 72, No. 158, at Page 46035, and revised notice in the Federal Register, August 27, 2007, Vol. 72, No. 165, at Page 48985. For more information, contact Yvette Springer at 202-482-2813. Location: DOC, main auditorium Herbert Hoover Building, 14th St. & Pennsylvania Ave., NW.

11:00 AM - 4:30 PM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Deemed Export Advisory Committee will meet in closed session. See, notice in the Federal Register, August 27, 2007, Vol. 72, No. 165, at Page 48985. For more information, contact Yvette Springer at 202-482-2813. Location: __?

2:00 - 3:30 PM. The U.S. Chamber of Commerce's Coalition Against Counterfeiting and Piracy (CACP) will meet. For more information, contact counterfeiting at uschamber dot com or 202-463-5500. Location: U.S. Chamber, 1615 H St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding Draft Federal Information Processing Standard (FIPS) Publication 198-1 [11 pages in PDF], titled "The Keyed-Hash Message Authentication Code (HMAC)".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding Draft Federal Information Processing Standard (FIPS) Publication 180-3 [29 pages in PDF], titled "Secure Hash Standard (SHS)".

Deadline to submit comments to the Securities and Exchange Commission (SEC) in response proposal to change its rules to provide two exemptions from the registration requirements of the Securities Exchange Act of 1934 for compensatory employee stock options. See, notice in the Federal Register, July 10, 2007, Vol. 72, No. 131, at Pages 37607-37624.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding proposed rules to ensure bidirectional compatibility of cable television systems and consumer electronics equipment. The NPRM also seeks comment on whether these rules should apply to non-cable Multichannel Video Programming Distributors (MVPDs) and whether there are technological solutions that are network agnostic and deployable across all MVPD platforms, including DBS, IP, and QAM/IP. The FCC adopted this item on June 27, 2007, and released the text on June 29, 2007. It is FCC 07-120 in CS Docket No. 97-80 and PP Docket No. 00-67. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40818-40824.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Wireline Competition Bureau's (WCB) notice requesting comments to refresh the record on the issues raised by the FCC's 2004 Further Notice of Proposed Rulemaking (NPRM) regarding its universal service subsidy programs titled "Lifeline" and "Linkup". The WCB issued its notice on March 12, 2007. It is DA 07-1241. The FCC issued its NPRM on June 22, 2004, in WC Docket No. 03-109. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40816-40818.

9:00 AM. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) President's Council of Advisors on Science and Technology (PCAST) will meet. The agenda [PDF] includes a panel on nanotechnology and a panel on partnerships between universities and non-government entities in support of research. See, notice in the Federal Register, August 24, 2007, Vol. 72, No. 164, at Pages 48639. Location: Room 100, Keck Center of the National Academies, 500 5th St., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in American Bird Conservancy v. FCC, App. Ct. No. 06-1165. Judges Henderson, Randolph and Brown will preside. Location: Courtroom 22 Annex, Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Issues in Emergency Communications: A Legislative Hearing on H.R. 3403, the 911 Modernization and Public Safety Act of 2007, and an Oversight Hearing of the Department of Homeland Security’s Office of Emergency Communications". This hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "U.S.-Peru Trade Promotion Agreement". See, notice. Location: Room 215, Dirksen Building.

POSTPONED. 12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch regarding the FCC's Media Bureau (MB). The speakers will be Bureau Chief Monica Desai and other representatives of the MB. For more information, contact Kerry Loughney at kerry at fcba dot org. Location: Holland & Knight, Lower Level Conference Room, 2099 Pennsylvania Ave., NW.

12:30 PM. The Association for Competitive Technology (ACT) will host a lunch titled "The Growing Threat to American Competitiveness: Is Antitrust Policy Being Used as a New Form of Protectionism?" The speakers will be Rep. Robert Wexler (D-FL), Robert Atkinson (Information Technology and Innovation Foundation), Steve DelBianco (ACT), and Ronald Cass (Center for the Rule of Law). RSVP to rsvp at actonline dot org or 202-420-7484. Location: Room 2200, Rayburn Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Patent Damages: Discovery, Pre-trial and Litigation Strategies". The speakers will be Charles Fish (Time Warner Corporate Patent Group), Clifton McCann (Venable), and Andrew Aitken (Venable). The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

TIME? Day one of a two day meeting of the President's Council of Advisors on Science and Technology (PCAST). The PCAST web site states that this meeting will take place on September 11-12, 2007. Location?

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding changes to its rules that govern the 4.9 GHz band and the Wireless Medical Telemetry Service which shares spectrum. This NPRM is FCC 07-85 in WP Docket No. 07-100. The FCC adopted this NPRM on May 9, 2007, and released it on May 14, 2007. See, notice in the Federal Register, June 13, 2007, Vol. 72, No. 113, at Pages 32582-32589.

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding Section 612 of the Communications Act, which is codified at 47 U.S.C. § 532, which requires cable operators to set aside channel capacity for commercial use by video programmers unaffiliated with the operator, and Section 616 of the Communications Act, which is codified at 47 U.S.C. § 536, which prohibits a cable operator or other multichannel video programming distributor (MVPD) from requiring a financial interest in any program service as a condition for carriage of such service, from coercing a programmer to grant exclusive carriage rights, or from engaging in conduct that unreasonably restrains the ability of an unaffiliated programming vendor to compete fairly by discriminating against such vendor on the basis of affiliation or nonaffiliation. The FCC adopted this item on March 2, 2007, and released the text on June 15, 2007. This NPRM is FCC 07-18 in MB Docket No. 07-42. See, notice in the Federal Register, July 18, 2007, Vol. 72, No. 137, at Pages 39370-39377, and Public Notice [PDF] (DA 07-3736) extending comment deadlines.

Rosh Hoshana begins at sundown.

8:00 AM. The Information Technology Association of America (ITAA) will host an event titled "2007 Telework Exchange Town Hall Meeting". For more information, contact Mark Uncapher at muncapher at itaa dot org. Location: Ronald Reagan Building & Trade Center.

9:00 AM - 12:00 NOON. The Department of Commerce's (DOC) Measuring Innovation in the 21st Century Economy Advisory Committee will meet. A purpose of this committee is to determine how to quantify the national innovation rate, to measure innovation in a manner similar to the way the Gross Domestic Product (GDP) measures economic output. See, notice in the Federal Register, August 6, 2007, Vol. 72, No. 150, at Pages 43628-43629. Location: Auditorium, DOC, 1401 Constitution Ave., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?". Location: Room 226, Dirksen Building.

12:00 NOON. The Law Library of Congress will host a panel discussion titled "National Security and the Constitution". The speakers will be Louis Fisher (Library of Congress), Brian McKeon (Chief Counsel for the Senate Foreign Relations Committee), and Michael O’Neill (Minority Chief Counsel and Staff Director for the Senate Judiciary Committee). The event is free, but reservations are required. Contact Alisa Carrel at acar at loc dot gov. Location: Law Library’s Multimedia Room, Room 240, James Madison Building, 101 Independence Ave., SE.

TIME? Day two of a two day meeting of the President's Council of Advisors on Science and Technology (PCAST). The PCAST web site states that this meeting will take place on September 11-12, 2007. Location?

Rosh Hoshana.

The House will not meet.

12:30 - 2:30 PM. The DC Bar Association will host a panel discussion titled "Trade, Investment and Politics: A Roundtable on the U.S. - Latin America Relationship". The speakers will be Mario Gustavo Guzmán Saldana (Bolivia's Ambassador to the US), Luis Benigno Gallegos Chiriboga (Ecuador's Ambassador to the US), Thomas Shannon (Assistant Secretary of State, Bureau of Western Hemisphere Affairs), Everett Eissenstat (Assistant U.S. Trade Representative for the Americas), Rep. Gregory Meeks (D-NY), and Omar Garcia (President, Chairman of the Inter-American Legal Affairs Committee). The price to attend ranges from $5 to $25. For more information, call 202-626-3463. See, notice. Location: McKenna Long & Aldridge, 1900 K St., NW.

EXTENDED TO OCTOBER 1. Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the operation of, and continued necessity for, the cable and satellite statutory licenses under the Copyright Act. See, notice in the Federal Register, April 16, 2007, Vol. 72, No. 72, at Pages 19039-19055. See also, technical correction notice in the Federal Register, April 24, 2007, Vol. 72, No. 78, at Page 20374. See, notice of extension in the Federal Register, June 19, 2007, Vol. 72, No. 117, at Pages 33776-33777.

Deadline to submit written requests to testify (and copies of prepared testimony) at the Office of the U.S. Trade Representative (OUSTR) hearing on September 27, 2007. The OUSTR will hold a hearing to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). The OUSTR will consider, among other things, intellectual property rights (IPR) and IPR enforcement. See, notice in the Federal Register, July 25, 2007, Vol. 72, No. 142, at Pages 40905-40906.

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