10/9. The U.S. Court of Appeals (FedCir) issued its opinion [14 pages in PDF] in Predicate Logic v. Distributive Software, a patent infringement case involving measurement and analysis technologies for use in software development.

Predicate Logic, Inc. is the holder of U.S. Patent No. 5,930,798, titled "Universal data measurement, analysis and control system". Predicate filed a complaint in 2001 in U.S. District Court (SDCal) against Distributive Software, Inc. alleging infringement of this patent.

Distributive then requested ex parte reexamination of the patent by the U.S. Patent and Trademark Office (USPTO). The claims were allowed as amended during reexamination.

Then, back in the District Court, Distributive argued that the asserted claims were invalid, pursuant to 35 U.S.C. § 305, because the amendment during reexamination improperly broadened the claims. The District Court granted Distributive's motion for summary judgment of invalidity.

The Court of Appeals concluded that the amendment did not substantively change the scope of the claim, and therefore reversed and remanded.

The Court of Appeals also wrote that "When the complexities inherent in the English language meet the peculiarities of patent jargon, the result can be the bane of many unsuspecting patentees. While claim language is generally the product of the patentee alone, the patentee’s drafting efforts are sometimes aided by the examiner. Usually, such collaborative efforts are constructive. On occasion, however, these efforts result in confusion, not clarity. In this case, there were two such occasions. The first was during the original prosecution -- when the patentee authored and the examiner allowed a claim with an arguably ambiguous limitation. The second was during reexamination -- when the patentee and the examiner clarified the claim but failed to make an adequate record explaining the rationale for the amendment."

The Court of Appeals cautioned that "Careful and straightforward claim drafting by prosecuting attorneys and agents, and rigorous application by examiners of the statutory standard to particularly point out and distinctly claim the subject matter regarded to be the invention, see 35 U.S.C. § 112, ¶ 2 (2000), serve an important public notice function. Here, the public notice function was not well served. Indeed, the controversy in this case might have been avoided had the claims been presented differently and accepted by the examiner only after more careful scrutiny." (Hyperlink added.)

This case is Predicate Logic, Inc. v. Distributive Software, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2007-1539, an appeal from the U.S. District Court for the Southern District of California, D.C. No. 01-CV-1951, William Hayes presiding. Judge Richard Linn wrote the opinion of the Court of Appeals, in which Judge Pauline Newman and Alan Lourie joined.

10/8. The U.S. Court of Appeals (11thCir) issued its opinion [PDF] in MCI WorldCom Network Services, Inc. v. Mastec, a case regarding availability of loss of use damages for severing a fiber optic cable.

MCI WorldCom filed a complaint in U.S. District Court (SDFl) against Mastec alleging that it tortiously severed a fiber optic cable. MCI WorldCom sought compensatory, loss of use, and punitive damages.

The District Court granted summary judgment to Mastec on the loss of use damages issue. MCI WorldCom brought the present appeal.

The Court of Appeals previously certified questions to the Florida Supreme Court (FSC). In response, the SCF held that loss of use damages based on rental replacement value is not the appropriate measure of damages when there were no such costs incurred and the telecommunications traffic carried by the damaged cable was accommodated within the telecommunications carrier’s own network with no loss of service.

Hence, the Court of Appeals affirmed the judgment of the District Court.

This case is MCI WorldCom v. Mastec, Inc., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 03-13022, an appeal from the U.S. District Court for the Southern District of Florida, D.C. No. 01-02059-CV-ASG.

10/7. Gary Shapiro, head of the Consumer Electronics Association (CEA), sent a letter to Kevin Martin, Chairman of the Federal Communications Commission (FCC), regarding battery powered DTV receivers.

Martin sent a letter [PDF] on September 23, 2008, to the CEA and the Consumer Electronics Retailers Coalition (CERC). See, story titled "Martin Wants Market to Provide Battery Powered DTV Receivers" in TLJ Daily E-Mail Alert No. 1,834, September 24, 2008.

Martin wrote "to ask your help in encouraging the availability of battery packs for digital-to-analog converter boxes and battery-powered DTV receivers". He asserted that only one manufacturer is producing these, and they are "often out of stock".

Shapiro wrote back that these products are "widely available".

He wrote that "the manufacturers and retailers are already responding to consumer demand for these products. One manufacturer of coupon-eligible converters now offers a battery pack for its converters as a reasonably-priced accessory; both the converter and the battery pack are widely available. In addition, consumers for more than a year have been able to find battery-powered DTV receivers at many retailers."

He added that the "Converter Battery Pack" is "already a well-established and popular product category" that was "created in response to market demand and not as a result of government regulation".

Shapiro concluded, "I hope you find this information helpful."

10/8. The Progress & Freedom Foundation (PFF) released a short paper [3 pages in PDF] titled "A Point of View: Net Neutrality Regulation in the United States". The author is the PFF's Barbara Esbin. The paper provides a ten year historical context for the FCC's August 1, 2008, broadband network management practices order [67 pages in PDF].

See also, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, Monday, August 4, 2008.

Esbin wrote that "The ruling was the culmination of a ten-year effort that began as a call for wholesale ``open access´´ to the cable platform for third-party Internet service providers."

Esbin stated that requests for open access emerged in the 1998 FCC proceeding on AT&T's acquisition of cable operator TCI, and again in FCC proceedings on the classification of broadband services, in which the FCC declined to impose open access requirements on broadband service providers.

Esbin argued that the effect of the August 1, 2008 order "is to establish a fifth ``non-discrimination´´ Internet policy principle, to be implemented by the FCC through case-by-case adjudication of individual complaints rather than ex ante rules. Thus, 10 years later, and without explicit acknowledgment, the FCC has effectively abandoned its ``hands off´´ approach and imposed a form of common carrier regulation on ISPs."

10/8. A grand jury of the U.S. District Court (EDTenn) returned an indictment on October 7, 2008, that charges David C. Kernell with violation of 18 U.S.C. § 1030 in connection with his alleged unauthorized accessing of Governor Sarah Palin's Yahoo e-mail account.

The Department of Justice (DOJ) unsealed the indictment on October 8.

The indictment states that "Kernell gained unauthorized access to the e-mail account" of Sarah Palin "by resetting the password using Yahoo's password-recovery tool. Specifically, he reset the password to ``popcorn´´ by researching and correctly answering a series of personal security questions."

It further states that "Once defendant Kernell established control over the e-mail account by changing the password, he read the contents and made screenshots of the e-mail directory, e-mail content, and other personal information. The personal information included, but was not limited to, other e-mail addresses of family members, pictures of family members, ... and Governor Palin's address book for her Yahoo e-mail account."

It also states that "The screenshots of personal information ... were posted to a public website" and Kernell "posted the reset password, thus providing the means of access to the e-mail account to others".

It also states that "After posting the new password ... and in contemplation of an investigation by law enforcement authorities, defendant Kernel, removed, altered, concealed and covered up files on his laptop computer."

The one count indictment charges as follows: "DAVID C. KERNELL, in furtherance of the commission of a criminal violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section 1030(a)(2), intentionally and without authorization accessed a protected computer by means of an interstate communication and thereby obtained information, and did aid and abet in same.
[Title 18, United States Code, Sections 2, 1030(a)(2)(C), and 1030(c)(2)(B)(ii)]"

§ 1030(a)(2)(C) provides that "Whoever ... intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer if the conduct involved an interstate or foreign communication ... shall be punished".

§ 1030(c)(2)(B)(ii) pertains to punishment. It provides that "The punishment for an offense under subsection (a) or (b) of this section is ... a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), or an attempt to commit an offense punishable under this subparagraph, if ... the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State".

18 U.S.C. § 2701 contains the prohibitions of the Stored Communications Act (SCA). While Section 2701 contains a criminal prohibition, the indictment does not contain a count charging violation of Section 2701. Violation of Section 2701 is pled for the purpose of sentencing.

§ 2701 provides that "whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished ..."

The indictment states that Yahoo is an "Electronic Communications Service Provider".

On September 26, 2008, President Bush signed into law HR 5938 [LOC | WW], a bill that amends § 1030, including Subsection 1030(a)(2)(C). However, the indictment alleges that the unauthorized accessing took place on September 16, before the effective date of the amendments.

See, stories titled "Bush Signs Section 1030 Bill" in TLJ Daily E-Mail Alert No. 1,835, September 30, 2008, and "House Passes Section 1030 Bill" in TLJ Daily E-Mail Alert No. 1,826, September 16, 2008.

Section 203 of the bill deletes from Subsection 1030(a)(2)(C) the "interstate or foreign communication" requirement. Also, this amendment would not have affected this case even if it had taken effect prior to the commission of the alleged crime. The indictment alleges that Kendell acted in Tennessee, while Yahoo's servers are located in California.

This case is USA v. David C. Kernell, U.S. District Court for the Eastern District of Tennessee, Knoxville Division, D.C. No. 3:08-CR-142.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2008 David Carney, dba Tech Law Journal. All rights reserved.

Tech Law Journal experienced e-mail delivery problems with TLJ Daily E-Mail Alert No. 1,841. It was resent Friday afternoon, and is now in the TLJ web site. TLJ Daily E-Mail Alert No. 1,840 (sent on Wednesday), and TLJ Daily E-Mail Alert No. 1,839 (sent on Tuesday) are also now in the TLJ web site.

10/8. The Federal Communications Commission (FCC) published a revised agenda [PDF] for its event titled "Open Commission Meeting", which may be held on October 15, 2008, in Nashville, Tennessee.

10/9. The U.S. Court of Appeals (9thCir) issued an amended opinion [19 pages in PDF] in In Re Dynamic Random Access Memory (DRAM) Antitrust Litigation, App. Ct. No. 06-15636. The Court of Appeals also wrote that "No petitions for panel rehearing or rehearing en banc will be considered."

10/6. The U.S. District Court (DC) issued an opinion [3 pages in PDF] and order in Laface Records v. Does., a copyright infringement case. The District Court held that Laface Records is entitled to a subpoena, issued pursuant to Rule 45, Federal Rules of Civil Procedure (FRCP), directing internet service provider Verizon to disclose information about its customers who may have infringed Laface Records' copyrights. The opinion states that Laface Records "shall be allowed to serve immediate discovery on Verizon to obtain the identity of each John Doe Defendant by serving a Rule 45 subpoena that seeks information sufficient to identify each Defendant, including name, current and permanent addresses, telephone numbers, email addresses, and Media Access Control addresses." However, the District Court further directed Verizon to first give e-mail notice to the Doe defendants, to enable them to file motions to quash, prior to providing discovery to Laface Records. The District Court cited and relied upon its April 28, 2008, Memorandum Opinion [17 pages in PDF] in Arista Records v. John Does, D.C. No. 07-1649 (CKK). See, story titled "District Court Denies John Doe P2P Infringer's Efforts to Quash Subpoena to ISP" in TLJ Daily E-Mail Alert No. 1,757, April 30, 2008. The present case is Laface Records LLC v. John Does 1-51, U.S. District Court for the District of Columbia, D.C. No. 08-1569 (CKK), Judge Colleen Kotelly presiding.

The House will not meet. Its next scheduled meeting is at 11:00 AM on January 3, 2009. See, HConRes 440.

The Senate will meet in pro form session only.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, App. Ct. No. 07-1356. See, FCC's brief [61 pages in PDF]. Judges Ginsburg, Tatel and Brown will preside. Location: 333 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "The Crime of Reason and the Closing of the Scientific Mind". This book argues that intellectual property laws and government security demands threaten the development of new knowledge. The speakers will be Robert Laughlin (author), Tom Sydnor (Progress & Freedom Foundation), and Jim Harper (Cato). See, notice and registration page. This event is free and open to the public. The Cato Institute will web cast this event. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petitions for reconsideration (PFR) of the FCC's Report and Order (R&O) that is sometimes referred to as the "multi-tenant environment voice exclusivity order". The FCC adopted this R&O on March 19, 2008, and released the text [30 pages in PDF] on March 21, 2008. This R&O is FCC 08-87 in WT Docket No. 99-217. See, story titled "FCC Order Abrogates Property Owners' Contracts with Telcos" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008. See also, Verizon's PFR [9 pages in PDF] of June 13, 2008, and Stephen Weinstein's PFR [7 pages in PDF] of March 24, 2008. See also, notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Page 55513.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration (PFR) [4 pages in PDF] of the FCC's Memorandum Opinion and Order and Report and Order (MO&O and R&O) approving the merger of XM and Sirius. The FCC adopted this item on July 25, 2008, and released the text [109 pages in PDF] on August 5, 2008. See, story titled "FCC Releases XM Sirius Merger Order" in TLJ Daily E-Mail Alert No. 1,807, August 6, 2008, story titled and "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008. This item is FCC 08-178 in MB Docket No. 07-57. Mt Wilson FM Broadcasters, Inc. filed this PRF on September 4, 2008. See also, notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Page 55513.

Columbus Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

8:00 - 10:00 AM. Broadband Census [URL is http colon slash slash broadbandcensus dot com] will host a panel discussion titled "10 Years Under the Digital Millennium Copyright Act: Success or Failure?" The speakers will be Drew Clark (Broadband Census, moderator), Mitch Glazier (Recording Industry Association of America), Michael Petricone (Consumer Electronics Association), Wendy Seltzer (American University law school), and Emery Simon (Business Software Alliance). This event is open to the public. The price to attend is $46.12. Breakfast will be served. There is an online registration page. For more information, contact Drew Clark at 202-580-8196. Location: Old Ebbitt Grill, 675 15th St., NW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a program titled "Does DARPA Still Effectively Spur U.S. Technological Innovation?" The speaker will be Erica Fuchs (Carnegie Mellon University). This event is free and open to the public. See, notice and registration page. A light breakfast will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. See, notice in the Federal Register, September 19, 2008, Vol. 73, No. 183, at Pages 54412-54413. Location: J.W. Marriott, Salons E and F, 1331 Pennsylvania Ave., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a closed event titled "Intellectual Property as an Investible Asset: The Future of Buying and Selling Intellectual Property". The speakers will be Darrell Mottley (Banner & Witcoff), Krista Holt (Ocean Tomo), and Cameron Gray (Intellectual Property Exchange International). The price to attend ranges from $20 to $35. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:00 PM. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to certain ex parte filings submitted by the Association of Public Safety Communications Officials, International (APCO), National Emergency Number Association (NENA), AT&T, Sprint Nextel, and Verizon Wireless regarding the FCC's location accuracy mandates. See, FCC Public Notice [13 pages in PDF], Public Notice [PDF],  notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Pages 55473-55495, and notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Page 56540. These Public Notices are DA 08-2129 and DA 08-2149 in PS Docket No. 07-114.

12:15 - 1:30 PM. Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee will host a brown bag lunch titled "The FTC's recently adopted ``Red Flag Rules´´ pursuant to the Fair and Accurate Credit Transactions Act of 2003". The speakers will be Pavneet Singh (Federal Trade Commission), Eric Breisach (Womble Carlyle), Michael Epshteyn (Covington & Burling), and Steven Rich (Paul Hastings). Location: Covington & Burling, 1201 Pennsylvania Ave., NW.

4:15 PM. The Federal Communications Bar Association (FCBA) and the D.C. Circuit Historical Society will host a panel discussion titled "FCC Indecency Cases in the D.C. Circuit: An Historical Perspective". The speakers will be Glen Robinson (former FCC Commissioner), Judge Timothy Dyk (U.S. Court of Appeals for the Federal Circuit), Patricia Wald (former Judge of the U.S. Court of Appeals for the DC Circuit), Judge Laurence Silberman (DC Circuit), and Christopher Wright (Harris Wiltshire & Grannis, moderator). This event is free and open to the public. For more information, contact Christopher Wright at cwright at harriswiltshire dot com.Location: Ceremonial Courtroom, 6th floor, U.S. Courthouse, 3rd Street and Constitution Aves., NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the CTIA's Petition for Declaratory Ruling [44 pages in PDF] regarding 47 U.S.C. § 332(c)(7)(B), ensuring timely siting review, and preemption under 47 U.S.C. § 253 of state and local ordinances that classify all wireless siting proposals as requiring a variance. This is WT Docket No. 08-165. See, August 14, 2008, Public Notice (DA 08-1913) and notice in the Federal Register, August 29, 2008, Vol. 73, No. 169, at Pages 50972-50973. See, extension notice in the Federal Register, September 23, 2008, Vol. 73, No. 185, at Pages 54805-54807.

12:00 NOON - 6:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. See, notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Pages 56616-56617. Location: NSF, 4201 Wilson Boulevard, Suite 375, Arlington, Virginia.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Diversity and Young Lawyers Committees will host a brown bag lunch regarding mentoring. The speakers will be Michele Farquhar (Hogan & Hartson), Vicki Phillips (Georgetown University law school), and Ryan Wallach (Willkie Farr & Gallagher). RSVP to Edgar Class at eclass at wileyrein dot com or 202-719-7504. Location: Wiley Rein, 5th floor conference room, 1750 K St., NW.

8:00 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. The agenda for October 16 includes an "Overview of the Division of Electrical Communications and Cyber Systems". See, notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Pages 56616-56617. Location: NSF, 4201 Wilson Boulevard, Suite 375, Arlington, Virginia.

10:00 - 11:30 AM. The Department of State's (DOS) Advisory Committee on International Communications and Information Policy (ACICIP) will hold a public meeting. The agenda includes a discussion of preparations for the ITU World Telecommunication Standardization Assembly, scheduled for October 21-30, 2008, and other upcoming international telecommunications meetings and conferences. See, notice in the Federal Register, September 24, 2008, Vol. 73, No. 186, at Pages 55198-55199. Location: DOS, Loy Henderson Auditorium, Harry S. Truman Building, 2201 C St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a closed event titled "The Use of Mandatory Arbitration Clauses in Consumer Contracts: Good or Bad for Consumers?". The speakers will be Jerry Roscoe (JAMS), Sondra Mills (Department of Justice), Frank Bland (Public Justice), and Benjamin Klubes (Skadden Arps). The price to attend ranges from free to $20. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

3:30 - 5:00 PM. The Center for Democracy and Technology (CDT) will host an event titled "Can the Internet Transform Federal Rulemaking?". The speakers will include Dan Chenok (Pragmatics Inc.), Cynthia Farina (Cornell University Law School), Sally Katzen (University of Michigan School of Law). See, notice. RSVP to rsvp at netcaucus dot org or 202-638-4370. This event is free and open to the public. Location: Room 1300, Longworth Building, Capitol Hill.

5:00 - 7:00 PM. There will be a reception following the event titled "Can the Internet Transform Federal Rulemaking?"

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a seminar titled "The Amended Lobbying Disclosure Act: A Primer for FCBA Members". The speakers will include Frank Jazzo (Fletcher Heald & Hildreth), Barry Ohlson (Akin Gump), Melissa Laurenza (Akin Gump), Robert Bradner (Holland & Knight), Erin Dozier (National Association of Broadcasters), and Peter Connolly (Holland & Knight). Prices vary. See, notice and agenda and registration page. This event qualifies for continuing legal education (CLE) credits. Location: Sidley Austin, 6th floor, 1501 K St., NW.

The Federal Trade Commission (FTC) will hold a public workshop titled "Prohibition of Unfair Methods of Competition In Section 5 of the Federal Trade Commission Act". This workshop will address the scope of Section 5 of the FTCA, which is codified at 15 U.S.C. § 45, its relation to antitrust statutes, and its application to technology companies. The FTC proceeded in part under Section 5 in its JEDEC proceeding against Rambus. See, story titled "Court of Appeals Rules in Rambus v. FTC" in TLJ Daily E-Mail Alert No. 1,752, April 23, 2008. See, notice in the Federal Register, August 28, 2008, Vol. 73, No. 168, at Pages 50818-50819. Location: FTC Conference Center, 601 New Jersey Ave., NW.

12:00 NOON - 2:00 PM. The Technology Policy Institute (TPI) will host a panel discussion titled "Privacy and Data Security Issues Facing the Next Administration". The speakers will be Orson Swindle (Hunton & Williams, representing Sen. McCain), Peter Swire (law professor representing Sen. Obama), and Tom Leonard (TPI moderator). Lunch will be served. See, registration page. For more information, contact Ashley Creel at 202-828-4405 or events at techpolicyinstitute dot org. Location: Room 2322, Rayburn Building, Capitol Hill.

CHANGED TO SEPTEMBER 26. Extended deadline to submit to the National Telecommunications and Information Administration (NTIA) applications for membership on the NTIA's Commerce Spectrum Management Advisory Committee (CSMAC). The applicable positions have two year terms that commence in December of 2008. See, original notice in the Federal Register, August 1, 2008, Vol. 73, No. 149, at Pages 44972-44973, extension notice in the Federal Register, September 10, 2008, Vol. 73, No. 176, at Pages 52646-52647. See, third notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54139, moving the deadline up to September 26, 2008.