12/29. Nokia filed a complaint with the U.S. International Trade Commission (USITC) against Apple alleging violation of 19 U.S.C. § 1337 in connection with its "unlawful importation into the United States, the sale for importation, and/or the sale within the United States after importation of certain electronic devices, including mobile phones, portable music players, and computers."

The complaint alleges direct, contributory, and inducement of, infringement of seven Nokia patents: U.S Patent Numbers 6,714,091, 6,834,181, 6,895,256, 6,518,957, 6,073,036, 6,262,735, and 6,924,789

Previously, on October 22, 2009, Nokia filed a complaint in the U.S. District Court (DDel) against Apple alleging infringement of different set of patents -- Nokia's patents for GSM, UMTS and WLAN standards. The District Court litigation involves standards patents, while the USITC case involves implementation patents.

Nokia's USITC complaint states that it affects "at least the iPhone, iPhone 3G, and iPhone 3GS mobile phones, iPod Nano, iPod Touch, and iPod Classic portable music players, and iMac, Mac Mini, Mac Pro, Mac Book, MacBook Pro, and MacBook Air computers".

The complaint states that the 091 patent relates to "a programmable voltage controlled oscillator ("VCO") that increases the efficiency of the wireless device and uses less power than traditional VCOs, thereby increasing battery life". The 181 patent involves combining the antenna and speaker assemblies to save space. The 256 patent involves "reducing the overall chip count on the printed circuit board" when a camera is part of an electronic device. The 957 patent involves "deactivating the touch screen during phone calls so that information is not accidentally inputted via the touch screen when the phone is pressed against the ear".

The complaint states that the 036 patent "makes it easier to input information using a finger by magnifying or expanding the selected portion of the screen". Also, "The 735 patent introduced a way to link to other applications on electronic devices through an electronic message", and "The 789 patent introduces a way to both press a key to enter data, and to use a touch sensitive input to navigate through applications".

Nokia seeks from the USITC "a permanent exclusion order prohibiting the entry of Apple's infringing electronic devices into the United States" and "a permanent cease and desist order prohibiting Apple from importing, admitting or withdrawing from a foreign trade zone, marketing, advertising, demonstrating, warehousing inventory for distribution, distributing, offering for sale, selling, licensing, repairing, maintaining, updating, using, or transferring outside the United States for sale in the United States infringing electronic devices".

Apple's unauthorized use of Nokia's inventions is consistent with a long-standing Apple corporate tradition. The complaint also quotes Apple's Steve Jobs' quotation of Pablo Picasso, "good artists copy, great artists steal". The complaint then states that Jobs added that "we have always been shameless about stealing great ideas".

The Patent Act provides a right to exclude others from using one's inventions -- not ideas. The word "idea" does not appear in Chapter 10 of Title 35 of the U.S. Code, regarding patentability of inventions.

Paul Brinkman of the Washington DC office of the law firm of Alston & Bird filed the USITC complaint on behalf of Nokia Corporation (the Finnish corporation) and Nokia Inc. (the U.S. subsidiary corporation) on December 29, 2009. See also, USITC docket for case number 337-2702, regarding "Certain Electronic Devices, Including Mobile Phones, Portable Music Players, and Computers".

The USITC's Electronic Document Information System (EDIS) contains some but not all of the numerous exhibits, attachments, and declarations filed on December 29. Many are confidential due to their containing proprietary information.

Section 337, among other things, makes unlawful the following: "The importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that ... infringe a valid and enforceable United States patent or a valid and enforceable United States copyright ... or ... are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent".

On October 22, when Nokia filed its complaint in the District Court, it stated in a release that "Apple's iPhone infringes Nokia patents for GSM, UMTS and wireless LAN (WLAN) standards." It explained that "Nokia has created one of the strongest and broadest patent portfolios in the industry, investing more than EUR 40 billion in R&D during the last two decades. Much of this intellectual property, including the patents in suit, has been declared essential to industry standards. Nokia has already successfully entered into license agreements including these patents with approximately 40 companies, including virtually all the leading mobile device vendors, allowing the industry to benefit from Nokia's innovation."

It added that "The ten patents in suit relate to technologies fundamental to making devices which are compatible with one or more of the GSM, UMTS (3G WCDMA) and wireless LAN standards. The patents cover wireless data, speech coding, security and encryption and are infringed by all Apple iPhone models shipped since the iPhone was introduced in 2007."

"By refusing to agree appropriate terms for Nokia's intellectual property, Apple is attempting to get a free ride on the back of Nokia's innovation", said Nokia's Ilkka Rahnasto.

Apple filed an answer and counterclaim (alleging infringement by Nokia of Apple patents) on December 11, 2009. Bruce Sewell, Apple's General Counsel and SVP, stated in a release on December 11, 2009, that "Other companies must compete with us by inventing their own technologies, not just by stealing ours".

That case is Nokia Corporation v. Apple, Inc., U.S. District Court for the District of Delaware, D.C. No. 1:09-cv-00791-UNA.

12/30. The Federal Communications Commission (FCC) announced the tentative agenda [PDF] for its event titled "open meeting" scheduled for January 20, 2010.

First, the FCC stated that it is scheduled to adopt a Report and Order (R&O) regarding "the video distribution market". The new rules in this R&O address "terrestrially, cable-affiliated programming".

This is a reference to the terrestrial loophole in the program access rules, Section 628 of the Communications Act, which is codified at 47 U.S.C. § 548(b), and MB Docket Nos. 07-29 and 07-198.

The FCC adopted a Notice of Proposed Rulemaking (NPRM) on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169 in MB Docket No. 07-29 and 07-198. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. See especially, NPRM, beginning at Paragraph 115.

See also, December 29, 2009, ex parte filing [4 pages in PDF] of the Coalition for the Competitive Access to Content.

Second, the FCC is scheduled to adopt an Order and Further NPRM regarding its planning of a transition from analog to digital television. The news rules in the Order will prohibit "further distribution and sale of devices that operate in the 700 MHz frequency" and set "a date by which existing devices must clear the band to enable the rollout of public safety services and the deployment of next generation wireless devices to consumers". The FCC's release does not disclose the contents of the NPRM portion of this item.

Third, the FCC is scheduled to adopt an NPRM regarding prerecorded telemarketing calls, or robocalls.

Fourth, there will be an oral staff report on the status of the drafting of a document titled "National Broadband Plan", and in particular, "the national purposes portion".

This event may be held at 10:00 AM on Wednesday, January 20, 2010, in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. Most of the FCC's recent events titled "Open Meeting" have either not held at the scheduled time. The FCC may adopt some of these items beforehand. The FCC may remove items without adopting them. The FCC may postpone consideration of some of these items. The FCC sometimes adds items to the list without providing the "one week" notice required 5 U.S.C. § 552b. The FCC usually does not release at its events copies of the items that it adopts at its events.

12/29. Glenn Britt, P/CEO/Ch of Time Warner Cable (TWC), sent a letter to Sen. John Kerry (D-MA) regarding TWC's carriage of Fox Broadcasting programming as of January 1, 2010, when the two companies' current agreement expires.

Britt says TWC is willing to submit to arbitration before the Federal Communications Commission (FCC), and an interim agreement that continues the current agreement's terms and conditions.

He wrote, regarding "ongoing negotiations between Time Warner Cable and FOX to reauthorize carriage of FOX-owned broadcast stations and affiliated cable channels. Time Warner wholeheartedly agrees that any impasse should not result in consumers' loss of access to FOX programming."

"Accordingly", wrote Britt, "I am writing to confirm that Time Warner Cable will agree to whatever interim steps are necessary to preserve consumers' uninterrupted access to FOX programming after our current agreement expires on December 31, including your suggestion to enter into binding arbitration."

The dispute is over retransmission consent fees. News Corp. wants to charge TWC $1 per subscriber to air its FOX broadcast station. TWC wants to pay less.

Meanwhile, the Wall Street Journal reported that News Corp. has sent employees a memo stating that a deal is unlikely before the current contract expires. See, story titled "Fox, Time Warner Cable Unlikely To Reach Deal: News Corp COO".

At issue is whether TWC subscribers will be able to watch Fox's end of season football games, and other programming. TWC subscribers can also subscribe to satellite or telecom based multi-channel video providers to obtain Fox programming.

12/22. President Obama named Howard Schmidt, of the Information Security Forum, to be Cybersecurity Coordinator in the Executive Office of the President (EOP).

He worked in the Federal Office of Cybersecurity early in the Bush administration. He has also been Chief Security Officer at Microsoft, VP and Chief Information Security Officer at eBay, and held other private sector positions.

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that Schmidt "will be a first-rate coordinator, with the exact mix of skills that are needed for the job. He brings to the position government, law enforcement, and industry experience, bi-partisan political weight, and expertise in cyber security".

Heather Greenfield of the Computer and Communications Industry Association (CCIA) stated in a release that "We're glad to see this important post filled. Internet users need to trust their information and sensitive data is secure. President Obama's statements on cyber security reflect an understanding of the need to keep the Internet both open and safe and maintain the freedom and privacy of those using it."

She added that "Schmidt will have a full plate as cybersecurity touches on a wide range of issues including privacy, encryption, government procurement and whether the nation’s power grid is secure. He will also help determine what kind of public and private research and development is needed to develop cybersecurity standards. The private sector can and should be involved in the standard formulation process to ensure new standards are sufficiently forward looking and flexible enough to incorporate new technology."

See also, letter from Phil Bond, head of TechAmerica, to President Obama praising the selection of Schmidt.

The House will not meet the week of December 28 through January 1. See, Rep. Hoyer's release and release. See also, Section 11 of HRes 976 and HConRes 223.

The Senate will not meet the week of December 28 through January 1. It will next meet on January 5, 2010, at 12:00 NOON in pro forma session.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-37 Rev. 1 [88 pages in PDF] titled "Guide for Applying the Risk Management Framework to Federal Information Systems: A Security Life Cycle Approach".

New Year's Day. This is a federal holiday. See, Office of Personnel Management's (OPM) web page titled "2010 Federal Holidays".

Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division regarding the complaint, proposed final judgment, and Competitive Impact Statement in U.S. v. AT&T. See, notice in the Federal Register, November 3, 2009, Vol. 74, No. 211, at Pages 56869-56881. In this proceeding, the DOJ approved the merger of AT&T and Centennial Communications, subject to divestitures in eight local markets. See, story titled "DOJ Approves AT&T Acquisition of Centennial" in TLJ Daily E-Mail Alert No. 2,004, October 16, 2009. The Federal Register notice does not specify the comment deadline. Rather, it states that comments are due "within 60 days of the date of this notice".

The House will not meet the week of January 4-8. See, Rep. Hoyer's release and release. See also, Section 11 of HRes 976 and HConRes 223.

Deadline to submit proposals to be designated database administrator in the Federal Communications Commission's (FCC) white space proceeding. See, Public Notice [4 pages in PDF]. It is DA 09-2479 in ET Docket No. 04-186. See also, story titled "FCC Requests Proposals to Be Designated White Spaces Database Administrator" in TLJ Daily E-Mail Alert No. 2,018, November 30, 2009.

No events listed.

9:30 - 10:15 AM. The Federal Communications Commission's (FCC) World Radiocommunication Conference 12 Advisory Committee's (WRC-12 AC) Informal Working Group 3: Space Services will hold a meeting. See, notice [PDF]. Location: FCC, South Conference Room (7th Floor, Room 7-B516), 445 12th St., SW.

10:15 AM - 12:00 NOON. The Federal Communications Commission's (FCC) World Radiocommunication Conference 12 Advisory Committee's (WRC-12 AC) Informal Working Group 4: Regulatory Issues will hold a meeting. See, notice [PDF]. Location: FCC, South Conference Room (7th Floor, Room 7-B516), 445 12th St., SW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-34 Rev. 1 [150 pages in PDF] titled "Contingency Planning Guide for Federal Information Systems".

12/24. The Senate confirmed Miriam Sapiro to be Deputy U.S. Trade Representative. See, Congressional Record, December 24, 2009, at Page S14141. See also, statement of Ron Kirk praising Sapiro.

12/23. The Senate Finance Committee (SFC) approved the nomination of Michael Punke to be U.S. Ambassador to the World Trade Organization (WTO). See, Congressional Record, December 23, 2009, at Page S13882.

12/23. The Senate Finance Committee (SFC) approved the nomination of Isi Siddiqui to be Chief Agricultural Negotiator at the Office of the U.S. Trade Representative (OUSTR). See, Congressional Record, December 23, 2009, at Page S13882.

12/17. President Obama announced his intent to nominate Kevin Wolf to be Assistant Secretary of Commerce in charge of the Bureau of Industry and Security, which regulates exports. He is a partner in the Washington DC office of the law firm of Bryan Cave. See, White House news office release.

12/17. The Senate Banking Committee (SBC) approved the nomination of Eric Hirschhorn to be Under Secretary of Commerce for Export Administration. See, SBC release and Congressional Record, December 17, 2009, at Page S13382.

12/24. President Obama nominated Ronald Machen to be the U.S. Attorney for the District of Columbia. He is a partner in the Washington DC office of the law firm of Wilmer Hale. See, White House news office release. His Wilmer Hale biography web page states that he "Represented a large Regional Bell Operating Company (RBOC) in a commercial dispute, brought by another telecommunications provider, over its marketing practices". Federal Election Commission (FEC) records disclose that Machen gave money to the election campaigns of Barack Obama and other Democratic candidates in recent years.

12/24. President Obama nominated Andre Birotte to be the U.S. Attorney for the Central District of California. He is the Inspector General of the Los Angeles Police Commission. See, White House news office release.

12/23. President Obama announced his intent to nominate Roel Campos (at left), Lee Hamilton, Rita Hauser, Paul Kaminski, Ellen Laipson, Les Lyles, and Jami Miscik to be members of the President's Intelligence Advisory Board. See, White House news office release.

12/22. President Obama nominated Michelle Childs  and Richard Mark Gergel to be Judges of the U.S. District Court for the District of South Carolina. See, White House news office release.

12/17. The Senate Commerce Committee (SCC) approved the nomination of Julie Brill to be a Commissioner of the Federal Trade Commission (FTC) for the term of seven years from September 26, 2009. See, Congressional Record, December 17, 2009, at Page S13382.

12/17. The Senate Commerce Committee (SCC) approved the nomination of Edith Ramirez to be a Commissioner of the Federal Trade Commission (FTC) for the term of seven years from September 26, 2008. See, Congressional Record, December 17, 2009, at Page S13382.

12/17. The Senate Banking Committee (SBC) approved the renomination of Ben Bernanke to be Chairman of the Board of Governors of the Federal Reserve System by a vote of 16 to 7. See, SBC release.

12/17. The Senate Banking Committee (SBC) approved the nomination of Marisa Lago to be an Assistant Secretary of the Treasury. See, SBC release.

12/17. The Federal Communications Commission (FCC) released an order [PDF] that names Commissioners Mignon Clyburn and Meredith Baker to be members of the Federal-State Joint Board on Universal Service.

12/14. Rep. Bart Gordon (D-TN) (at right) announced that he will not run for re-election in 2010. See, release. He is the Chairman of the House Science Committee (HSC), and a senior member of the House Commerce Committee (HCC). He was the sponsor, in the 110th Congress of HR 3403 [LOC | WW], the "911 Modernization and Safety Act of 2007", which is now Public Law No. 110-283. See, stories titled "House Commerce Committee Approves 911 VOIP Bill" in TLJ Daily E-Mail Alert No. 1,667, November 1, 2007, and "House Passes VOIP 911 Bill" in TLJ Daily E-Mail Alert No. 1,676, November 14, 2007.

10/14. Rep. Robert Wexler (D-FL) announced his resignation from the House effective January 2010. He will become President of the Center for Middle East Peace. See, release. He is a member of the House Judiciary Committee (HJC). He has been a sponsor or cosponsor of bills to provide increased protection or enforcement of intellectual property rights, and has advocated prohibiting the diversion of U.S. Patent and Trademark Office (USPTO) fees to fund other government programs.

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. 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 two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2009 David Carney. All rights reserved.