3/3. Sen. Patrick Leahy (D-VT) and other Senators introduced S 515 [LOC | WW], the "Patent Reform Act of 2009". Rep. John Conyers (D-M) and others introduced HR 1260 [LOC | WW], the companion bill in the House. See also, PDF copy.

The original cosponsors of the Senate bill are Sen. Orrin Hatch (R-UT), Sen. Charles Schumer (D-NY), Sen. Mike Crapo (R-ID), Sen. Sheldon Whitehouse (D-RI), Sen. James Risch (R-ID), and Sen. Kirsten Gillibrand (D-NY).

The original cosponsors of the House bill are Rep. Lamar Smith (R-TX), Rep. Howard Berman (D-CA), Rep. Bob Goodlatte (R-VA), and Rep. Sheila Lee (D-TX).

Sen. Leahy issued a release that states that "The legislation makes needed updates to the system that will improve patent quality and increase certainty among parties in litigation. Among other things, the legislation introduced Tuesday would move the U.S. patent system toward a ``first-inventor-to-file system,´´ which would give priority to the first true inventor to file an application with the United States Patent and Trademark Office (PTO)."

He added that this bill "would also improve administrative reexamination procedures, and provide more clarity to all parties about their rights and potential liabilities earlier in the infringement litigation process."

Sen. Hatch stated in this release that "We all agree that more work needs to be done on the damages and inequitable-conduct provisions."

Sen. Arlen Specter (R-PA), the ranking Republican on the Senate Judiciary Committee (SJC), is not a cosponsor. He sent a letter to Sen. Leahy in which he urged delay.

He wrote that "The Supreme Court and Court of Appeals for the Federal Circuit have issued a number of significant patent decisions over the past two years and I believe that the legislative process will benefit from examining the impact of these decisions."

Sen. Specter elaborated that "Given the symbiotic relationship between the judicial and legislative branches with regard to changes to the patent system, I further ask that the bill not be placed on the Executive Business Agenda until late May, after the Court of Appeals for the Federal Circuit has the opportunity to hear argument in Lucent Technologies, Inc. v. Gateway, Inc. The court may consider issues related to the damages debate; specifically the scope of the “entire market value” rule when assessing damages."

He also pointed out that there is not even a nominee for the position of head of the U.S. Patent and Trademark Office (USPTO).

Nevertheless, Sen. Leahy is moving quickly. The SJC will hold a hearing on the bill at 10:00 AM on March 10, 2009. The witnesses will be Steven Appleton (Micron Technology), Philip Johnson (Johnson & Johnson), David Kappos (IBM), Taraneh Maghame, (Tessera), Herbert Wamsley (head of the Intellectual Property Owners Association), Mark Lemley (Stanford law school).

Reaction. Ken Wasch, head of the Software and Information Industry Association (SIIA), stated in a release that "By modernizing the U.S. patent system, Congress can help ensure that U.S. businesses continue to lead the global knowledge-based economy, create jobs here at home, and create certainty during this economic downturn."

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "The Patent Reform Act of 2009 will strengthen American innovation, improve America's global competitiveness, and create more high-tech jobs in America."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "We hope this legislation will get the attention and floor time it deserves."

He continued that "We understand that the apportionment of damages is an area of disagreement among some, but believe a common ground and common sense solution can be found that gives an inventor what they are entitled to -- no more and no less. Leaving this matter to the courts could have a chilling effect on innovation due to rulings that have been wildly disproportionate to the relative economic contribution of the intellectual property rights at issue."

3/2. The Supreme Court granted certiorari in Reed Elsevier v. Muchnick, a case regarding whether Section 411(a) of the Copyright Act, which pertains to registration, creates a jurisdictional requirement.

The Supreme Court wrote in its Orders List [7 pages in PDF] at page 2 that "The petition for a writ of certiorari is granted limited to the following question: Does 17 U.S.C. §411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?"

This is long running class action litigation over the rights of free lance authors with respect to republication of their works in electronic databases, such as those of LexisNexis and Westlaw.

The Supreme Court held in its June 25, 2001 opinion in New York Times v. Tasini, which is reported at 533 U.S. 483, that freelanced articles in newspapers, for which the author still owns the copyright, cannot be republished in electronic databases without permission from the author.

The Supreme Court held that the defendant publishers did not have a privilege under 17 U.S.C. § 201(c) to include in electronic databases the freelance articles written for and licensed to print publications.

See also, story titled "Supreme Court Rules for Authors in NYT v. Tasini" in TLJ Daily E-Mail Alert No. 216, June 26, 2001. And see, story titled "Supreme Court Grants Cert in NYT v. Tasini", Tech Law Journal, November 7, 2000.

The present case involves class action litigation in the U.S. District Court (SDNY). The District Court certified the class. That action was settled. The District Court approved the settlement on September 27, 2005. However, Irvin Muchnick and other freelance authors objected to the settlement and appealed to the U.S. Court of Appeals (2ndCir).

The Court of Appeals issued its divided opinion [43 pages in PDF] on November 29, 2007. That opinion is also reported at 509 F.3d 116.

The Court of Appeals, noting that most of the copyrights are unregistered, and applying Section 411(a), held that the District Court lacked jurisdiction over the plaintiffs' claims. It therefore vacated the class certification and settlement approval.

Judge John Walker wrote a lengthy dissent.

17 U.S.C. § 411(a) provides in full that "Except for an action brought for a violation of the rights of the author under section 106A (a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue."

This case is Reed Elsevier, Inc., et al., v. Irvin Muchnick, et al., Supreme Court of the United States, Sup. Ct. No. 08-103, a petition for writ of certiorari to the U.S. Court of Appeals for the Second Circuit. The Court of Appeals heard an appeal from the U.S. District Court for the Southern District of New York.

3/2. The Supreme Court denied certiorari in Nissim Corp. v. Time Warner, Inc., Sup. Ct. No. 08-954. See, Supreme Court docket and Orders List [7 pages in PDF] at page 6.

3/2. The Supreme Court issued an order in Hulteen v. AT&T, Sup. Ct. No. 07-543, a case regarding Title VII, calculation of retirement benefits, and pregnancy leave. The Supreme Court heard oral argument on December 10, 2008. The just released order states that "The motion of respondents for leave to file a supplemental brief after argument is granted. The motion of petitioner for leave to file a supplemental brief after argument is granted." See, Supreme Court docket and Orders List [7 pages in PDF].

3/3. President Obama announced his intent to nominate Julius Genachowski to be a member of the Federal Communications Commission (FCC), and to designate him as Chairman. See, White House news office release.

For biographical information about Genachowski, see story titled "Julius Genachowski" in TLJ Daily E-Mail Alert No. 1,882, January 13, 2009.

Michael Copps, the current and temporary Chairman of the FCC, stated in a release that "President Obama has made an excellent choice".

See also, statement of congratulations from FCC Commissioner Jonathan Adelstein, and statement of congratulations from FCC Commissioner Robert McDowell.

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release that "He is an excellent choice, and combines the policy savvy and real-world experience that will be necessary to confront both the challenges and opportunities presented at a time of incredible change sweeping the media, communications and technology marketplace."

Tom Tauke, of Verizon, stated in a release that "Julius Genachowski is an excellent choice to lead the FCC. In choosing him, President Obama highlights his commitment to promote investment in advanced communications networks."

Gigi Sohn, head of the Public Knowledge, stated in a release that "he understands the importance of open networks".

She added that "Julius also understands that in a democracy, government must be transparent and give the people the tools to participate actively. Thus, I am certain that he will seek to restore public confidence in an agency that has had a long history of opaqueness, industry capture, and a lack of data-driven policymaking. His collegial management style will also help rebuild morale at the agency."

Political Contributions. A search of federal political contributions reported to the Federal Election Commission (FEC) as of March 4, 2009, produces numerous contributions by Julius Genachowski, which the FEC totals to $34,993.00.

He has given to the campaigns of President Barack Obama, Sen. John Kerry (D-MA), Rep. Anthony Weiner (D-NY), and others.

He has also given to the Democratic Senatorial Campaign Committee (DSCC) and the Democratic Congressional Campaign Committee (DCCC).

He has also given to America Coming Together (an IRC § 527 group that paid a $775,000 fine for violation of federal campaign laws; see FEC release), Hopefund, Inc. (affiliated with Obama), and LA PAC (a Los Angeles based political action committee affiliated with Rep. Henry Waxman (D-CA), the Chairman of the House Commerce Committee).

3/3. Laurence Lessig, a law professor at Stanford University, wrote an essay in his web site title "John Conyers and Open Access". It pertains to HR 801 [LOC | WW], the "Fair Copyright in Research Works Act".

On February 3, 2009, Rep. John Conyers (D-MI) and others introduced this bill. See, story titled "Conyers Reintroduces Fair Copyright in Research Works Act" in TLJ Daily E-Mail Alert No. 1,893, February 6, 2009.

The House Judiciary Committee (HJC), of which Rep. Conyers is the Chairman, scheduled, and then cancelled, a hearing on HR 801 for March 4, 2009.

Lessig stated that this bill is "John Conyers' awful idea" and "insanity".

Lessig asked rhetorically, "For what possible reason could Conyers have for supporting" this bill? He then characterized Rep. Conyers' sponsorship as "silly support for such a stupid bill".

He also asked "what possible reason would a man from a district that insists on the government ``Buying American´´ have for supporting a bill that basically subsidizes foreign publishers"?

He also wrote "That the co-sponsors of this bill who sit on the Judiciary Committee received on average two-times the amount of money from publishing interests as those who haven't co-sponsored the bill."

Lessig added that this is "Yet another reason to support citizen funded elections."

He encouraged people to send e-mail to Rep. Conyers asking him "to explain exactly why -- if it wasn't the money -- he's so keen to hurt science."

Professor Lessig's essay did not discuss the extensive and effective lobbying efforts of large universities, and the interest groups that represent them, on this and other copyright issues.

This issue contains the following items:
 • Patent Reform Bills Introduced
 • Supreme Court Grants Cert in Reed Elsevier v. Muchnick
 • Obama Announces Intent to Nominate Genachowski
 • Lessig Belittles Copyright Bill and Political Contributions

The House will meet at 10:00 AM. UK Prime Minister Gordon Brown will address a joint session of the House and Senate. The agenda for the week includes consideration of numerous non-technology related items. See, Rep. Hoyer's schedule for the week of March 2.

The Senate will meet at 9:30 AM. It will resume consideration of HR 1105 [LOC | WW], the "Omnibus Appropriations Act, 2009".

The Department of Energy (DOE) Office of Electricity Delivery and Energy Reliability (OE) will hold a conference titled "Design Concepts of Future Electric Transmission". See, notice in the Federal Register, February 2, 2009, Vol. 74, No. 20, at Page 5826. Location?

9:00 AM - 4:15 PM. The U.S.-China Economic and Security Review Commission will hold a meeting titled "China's Military and Security Activities Abroad". See, notice in the Federal Register, February 2, 2009, Vol. 74, No. 20, at Pages 5896-5897. Location: Room 562, Dirksen Building, Capitol Hill.

9:00 AM - 12:00 NOON. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC) will meet. The agenda for March 4 includes "Gordon Bell Petascale Application -- Superconductors International Collaboration", "INCITE User Perspective", and "Public Comment". See, notice in the Federal Register, February 10, 2009, Vol. 74, No. 26, at Page 6608. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The President’s Fiscal Year 2010 Budget Proposal: Part One". The witness will be Timothy Geithner (Secretary of the Treasury). See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing on HR 848 [LOC | WW], the "Performance Rights Act". See, notice. The HJC will webcast this hearing. See also, story titled "Performance Rights Act Reintroduced" in TLJ Daily E-Mail Alert No. 1,896, February 10, 2009. Location: Room 2141, Rayburn Building.

TIME AND ROOM CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Getting to the Truth Through a Nonpartisan Commission of Inquiry". The SJC will webcast this event. See, notice. Location: Room 106, Dirksen Building.

2:00 PM. The House Ways and Means Committee will hold a hearing on President Obama's FY 2010 budget proposal. Peter Orszag (Director of the Office of Management and Budget) will testify. See, notice. Location: Room 1100, Longworth Building.

3:00 - 5:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice [PDF] and notice in the Federal Register, February 17, 2009, Vol. 74, No. 30, at Page 7435. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

TIME? The Office of the U.S. Trade Representative (OUSTR) will hold a hearing regarding its plans to initiate negotiations on a Trans-Pacific Partnership free trade agreement with Singapore, Chile, New Zealand, Brunei Darussalam, Australia, Peru and Vietnam. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Pages 4480-4482. Location?

Deadline to register for the National Institute of Standards and Technology's (NIST) Office of Law Enforcement Standards' (OLES) March 11, 2009, meeting via the internet to bring Project 25 Compliance Assessment Program stakeholders together to discuss what the process will be to assess software based test tools for the Project 25 Compliance Assessment Program. See, notice in the Federal Register, February 17, 2009, Vol. 74, No. 30, at Pages 7397-7398.

The House will meet at 10:00 AM for legislative business. The agenda for the week includes consideration of numerous non-technology related items. See, Rep. Hoyer's schedule for the week of March 2.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "The Need for Speed: The Importance of Next-Generation Broadband Networks". Location: ITIF, Suite 200, 1250 Eye St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of the nominations of Elena Kagan to be Solicitor General, Thomas Perrelli to be Associate Attorney General, and David Kris to be Assistant Attorney General in charge of the National Security Division. The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, and Science will hold a hearing titled "Science Education". Location: Room 2359, Rayburn Building.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, and Science will hold a hearing. The witness will be Norm Augustine. Location: Room H-309, Rayburn Building.

3:00 PM. The Senate Finance Committee (SFC) will hold a hearing on the nomination of Ron Kirk to be head of the Office of the U.S. Trade Representative (OUSTR). See, notice. Location: Room 215, Dirksen Building.

The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

Rep. Hoyer's schedule for the week of March 2 states that the House will meet at 9:00 AM for legislative business.

10:00 AM. The U.S. Court of Appeals (FedCir), Panel I, will hear oral argument in Digital Impact v. Bigfoot Interactive, App. Ct. No. 2008-1255, a patent case regarding e-mail distribution technology. See, Federal Circuit oral argument calendar for March, 2009. Location: Courtroom 201, 717 Madison Place, NW.

Daylight savings time begins.

Deadline to submit to the U.S. Patent and Trademark Office (USPTO) nominations of individuals to serve on the National Medal of Technology and Innovation Nomination Evaluation Committee. See, notice in the Federal Register, January 8, 2009, Vol. 74, No. 5, at Pages 800-801.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Media Bureau in response to the petitions for declaratory rulings of the Alliance for Community Media (ACM) and others regarding carriage of public, educational and governmental (PEG) channels. See, order [PDF] setting deadlines.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the proposed settlement agreement between the FTC and Genica Corporation and Compgeeks.com. See, notice in the Federal Register, February 10, 2009, Vol. 74, No. 26, at Pages 6627-6629. See, also story titled "FTC Brings and Settles Administrative Action Against Hacked Online Retailers" in TLJ Daily E-Mail Alert No. 1,893, February 6, 2009.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the October 8, 2008, Petition for Rulemaking [18 pages in PDF] submitted by the CTIA regarding transitioning certain cellular licensing rules to a geographic market area based licensing system. See, FCC's Public Notice numbered DA 09-5, and notice in the Federal Register, January 22, 2009, Vol. 74, No. 13, at Pages 4036-4037. This proceeding is RM No. 11510.

8:00 - 10:00 AM. The BroadbandCensus dot com [http colon slash slash broadbandcensus dot com] will host a breakfast event titled "Broadband Competition: Do We Have It, and How Do We Get More of It?" The speakers will include Jim Baller (Baller Herbst Law Group), Art Brodsky (Public Knowledge), and Scott Wallsten (Technology Policy Institute). For more information, contact Drew Clark at drew at broadbandcensus dot com or 202-580-8196. Breakfast begins at 8:00 AM. The program begins at 8:40 AM. The price to attend these monthly events is $45. These events are open to the public. Location: Old Ebbitt Grill, 675 15th St., NW.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee will meet. See, notice in the Federal Register, February 23, 2009, Vol. 74, No. 34, at Page 8053. Location: Room 4830, Hoover Building, 14th Street between Constitution and Pennsylvania Aves., NW.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing on HR 848 [LOC | WW], the "Performance Rights Act". See, notice. The HJC will webcast this hearing. See also, story titled "Performance Rights Act Reintroduced" in TLJ Daily E-Mail Alert No. 1,896, February 10, 2009. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Patent Reform in the 111th Congress: Legislation and Recent Court Decisions". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

Day one of a three day conference hosted by the International Association of Privacy Professionals titled "IAPP Privacy Summit 2009". Reporters' contact: Tammy Vigliotti at 207-351-1500 x106. See, conference web site. Location: Washington Marriott Wardman Park, 2660 Woodley Road, NW.

12:00 NOON. Deadline to submit written comments to the Office of the U.S. Trade Representative (OUSTR) in connection with its March 4, 2009, hearing regarding its plans to initiate negotiations on a Trans-Pacific Partnership free trade agreement with Singapore, Chile, New Zealand, Brunei Darussalam, Australia, Peru and Vietnam. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Pages 4480-4482.

1:00 - 5:00 PM. The National Institute of Standards and Technology's (NIST) Office of Law Enforcement Standards (OLES) will hold a meeting via the internet to bring Project 25 Compliance Assessment Program stakeholders together to discuss what the process will be to assess software based test tools for the Project 25 Compliance Assessment Program. The deadline to register is March 4, 2009. See, notice in the Federal Register, February 17, 2009, Vol. 74, No. 30, at Pages 7397-7398.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Circuit City Unplugged: Why Did Chapter 11 Fail To Save 34,000 Jobs?". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

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