10/1. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register that announces that it will "begin publishing the notorious market list separately from the annual Special 301 report in which it has previously been included".

The OUSTR also requests comments solely on the subject of notorious markets. Comments are due by 5:00 PM on November 5, 2010.

This revised OUSTR process bears some similarities to a Department of Justice (DOJ) process contained in the recently introduced S 3804 [LOC | WW], the "Combating Online Infringement and Counterfeits Act".

The notice asks for the following information: "Location; principal owners/operators (if known); types of products sold, distributed, or otherwise made available; any known civil or criminal enforcement  activity against the market; any other efforts to remove/limit infringing materials; any positive progress made." (Parentheses in original.)

It does not ask for comments regarding the policy merits of conducting a stand alone notorious markets review. Nor does it ask for comments regarding the related proposal contained in S 3804.

Nor does this notice pose the question of whether a third party's (i.e., internet access provider, ad server, or financial transaction provider) failure to take action against web sites or entities on the OUSTR's notorious markets list, or the DOJ's S 3804 list, should constitute evidence of inducement of infringement, within the meaning of the Supreme Court's opinion [55 pages in PDF] in MGM v. Grokster. See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Although, rights holders may advance such an argument in the future. The OUSTR's new process, and the proposal of the sponsors of S 3804, may facilitate such a strategy by rights holders.

Section 301 is the statutory means by which the U.S. asserts its international trade rights, including its rights under World Trade Organization (WTO) agreements. In particular, under the "Special 301" provisions of the Trade Act of 1974, the OUSTR identifies trading partners that deny adequate and effective protection of intellectual property or deny fair and equitable market access to U.S. artists and industries that rely upon intellectual property protection. See, 19 U.S.C. § 2242.

However, Section 2242 contains no reference to the identification of notorious web sites, or notorious markets. Rather, it requires the OUSTR to identify "foreign countries". The OUSTR must identify, for example, countries that "deny adequate and effective protection of intellectual property rights, or ... deny fair and equitable market access to United States persons that rely upon intellectual property protection".

The OUSTR released its 2010 Special 301 report [54 pages in PDF] on April 30, 2010. It contains only three pages on notorious markets. (See, pages 43-45). Only one page of the 2010 report addresses notorious web sites. It lists four web sites in the People's Republic of China (PRC) -- Baidu, TV Ants, TaoBao, and Alibaba -- as well as business to business and business to consumer web sites in the PRC generally. It also lists a set of music infringement web sites in Russia, and one class of web sites in Korea.

The 2010 report states that "Global piracy and counterfeiting continue to thrive due in part to marketplaces that deal in infringing goods. The 2010 Special 301 Report notes the following markets, including those on the Internet, as examples of marketplaces that have been the subject of enforcement action or that may merit further investigation for possible IPR infringements, or both. The list represents a selective summary of information reviewed during the Special 301 process; it is not a finding of violations of law. The United States encourages the responsible authorities to step up efforts to combat piracy and counterfeiting in these and similar markets." (See, page 43.)

See also, the internet notorious markets section (at page 35) of the 2009 report [44 pages in PDF], and the internet notorious markets material (at page 7) in the 2008 report [PDF].

What is new about the just announced process is that the OUSTR seeks notorious markets comments separately from other Special 301 comments, and that it plans to issue a separate report on notorious markets.

The just released notice states that placement on the notorious markets list "does not represent a finding of violation of law, but rather is a summary of information USTR reviewed during the Special 301 process that serves to highlight the problem of marketplaces that deal in infringing goods and help sustain global piracy and counterfeiting."

The just published notice is at Federal Register, October 1, 2010, Vol. 75, No. 190, at Pages 60854-60855.

Comparison of OUSTR Notorious Markets List to the Proposed DOJ List. This revised OUSTR notorious markets process bears some of the same attributes as a proposal contained in S 3804. Sen. Patrick Leahy (D-VT) and others introduced this bill on September 20, 2010.

The bill targets foreign web sites that are "dedicated to infringing activities". It would give the DOJ authority to bring in rem actions to seize domain names, and issue injunctions to internet access service providers, financial intermediaries, domain name registries and registrars, and ad servers.

It would also require that the DOJ maintain a public list of notorious web sites similar to the OUSTR's new Special 301 notorious list. The bill provides that the DOJ "shall maintain a public listing of domain names that, upon information and reasonable belief, the Department of Justice determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section".

The bill does not impose any requirements upon third parties to take any actions regarding web sites on this DOJ list. On the other hand, the OUSTR's notorious list is not associated with any mandates on third parties either.

However, either the OUSTR list, or the DOJ list, might lead some block access to, block e-mail from, decline to process financial transactions with, or refuse to serve ads to, web sites on either list.

For more on S 3804, see:

• stories titled "Senators Introduce Bill to Enable DOJ to Shut Down Web Sites Dedicated to Infringement", "Bill Summary: Combating Online Infringement and Counterfeits Act", and "Commentary: Combating Online Infringement and Counterfeits Act" in TLJ Daily E-Mail Alert No. 2,132, September 21, 2010
• stories titled "Tech Groups Oppose Domain Name Seizure Bill" and "CDT Argues that Domain Name Seizure Bill Implicates Freedom of Speech" in TLJ Daily E-Mail Alert No. 2,135, September 29, 2010.
• story titled "Senate Judiciary Committee Postpones Mark Up of Domain Name Seizure Bill" in TLJ Daily E-Mail Alert No. 2,136, September 30, 2010.

9/29. The Senate confirmed Subra Suresh to be Director of the National Science Foundation (NSF) for the term of six years. See, Congressional Record, September 29, 2010, at Page S7778.

He was previously a professor at Massachusetts Institute of Technology (MIT). His MIT bio stated that he was the "Vannevar Bush Professor of Engineering at the Massachusetts Institute of Technology. He holds joint faculty appointments in Materials Science and Engineering, Mechanical Engineering, Biological Engineering, and Health Sciences and Technology at MIT, and served as head of the Department of Materials Science and Engineering from January 2000 to January 2006."

He replaces Arden Bement, who has returned to Purdue University, where he is now head of its Global Policy Research Institute. See, Purdue release.

Rep. Bart Gordon (D-TN), the outgoing Chairman of the House Science and Technology Committee (HSTC) stated in a release that the "NSF will benefit from having an accomplished engineer at the helm, in particular with experience in some of the fast-growing fields of materials science, nanotechnology and the life sciences".

The NSF is the recipient of much of the federal government's funding of information technology related research.

9/29. President Obama nominated Caitlin Halligan to be a Judge of the U.S. Court of Appeals for the District of Columbia. See, White House news office release and release.

She has been General Counsel for the New York County District Attorney's Office since January of this year. Before that, she worked at the law firm of Weil Gotshal & Manges for several years. Before that, she was Solicitor General of New York State. Before that, she held several positions in the Office of the New York State Attorney General, including Chief of the Internet Bureau. She was also briefly worked for the Washington DC law firm of Wiley Rein.

Manhattan District Attorney Cyrus Vance, Jr., stated in a release that she "is an extraordinary attorney who brings strong legal expertise, exceptional intellect, and common sense judgment to all aspects of our work within the DA's Office and with other government agencies. I commend her on this nomination."

9/29. President Obama nominated Jimmie Reyna to be Judge of the U.S. Court of Appeals for the Federal Circuit. See, White House news office release and release. He is a partner in the Washington DC office of the law firm of Williams Mullen (WM), where he handles international trade matters.

His WM bio states that he "advises and represents clients in legal and regulatory matters involving the cross-border movement of goods, services and investments for a broad range of industry and services sectors. His experience includes: trade regulation (antidumping, countervailing duty); trade policy; trade negotiations and agreements; international treaties and accords; investment; business and corporate law; export controls; food safety; and litigation, arbitration and dispute resolution."

10/1. The Senate recessed on September 29, 2010, until November 12, leaving many judicial nominations pending. There are 23 judicial nominees who have been approved by the Senate Judiciary Committee (SJC), and who are on the Senate's Executive Calendar, as of October 1, 2010. This does not include persons nominated, but not yet approved by the SJC. The nominees on the Executive Calendar include the following:

Kathleen O'Malley (USCA/FedCir)
Mary Murguia (USCA/9thCir)
Goodwin Liu (USCA/9thCir)
Scott Matheson (USCA/10thCir)
Albert Diaz (USCA/4thCir)
Edward Chen (USDC/NDCal)
Beryl Howell (USDC/DC)
Robert Wilkins (USDC/DC)
John Gibney (USDC/EDVa)

9/30. Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), released a statement in which he complained about Republican obstruction and delay of President Obama's judicial nominees. Senate Democrats skillfully obstructed and delayed judicial nominees when George Bush was President.

9/29. President Obama nominated Mae D'Agostino to be a Judge of the U.S. District Court for the Northern District of New York. See, White House news office release and release.

9/29. President Obama nominated Brooke Jackson to be a Judge of the U.S. District Court for the District of Colorado. See, White House news office release and release. He has been a Colorado state court judge since 1998. Before that he worked for the law firm of Holland & Hart.

9/30. Léo Apotheker was named P/CEO of Hewlett Packard (HP), and elected to its Board of Directors, effective November 1, 2010. He was previously CEO of SAP. He will replace Mark Hurd, who is now President at Oracle. The HP Board also elected Ray Lane to the Board, and named him non-executive Chairman, effective November 1. He is Managing Partner at Kleiner Perkins. See, HP release.

9/29. Michelle Carey (at right) was named Deputy Chief of the Federal Communications Commission's (FCC) Media Bureau. She was previously a Senior Advisor to Lawrence Strickling, head of the National Telecommunications and Information Administration (NTIA). She has also held numerous positions at the FCC, including Senior Legal Advisor to former FCC Chairman Kevin Martin. See, FCC release.

9/29. Michael McKenzie was named Deputy Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB), and Senior Advisor on New Technology. The FCC stated in a release that he "will oversee the Mobility and the Spectrum Management Resources & Technologies (SMaRT) divisions within WTB and help provide overall strategic direction for the Bureau's activities". Previously McKenzie worked for Microsoft, the law firm of Wilson Sonsini Goodrich & Rosati, and the law firm of Wilmer Hale.

9/29. The Senate recessed on September 29, 2010, until November 12, without voting on the nomination of James Cole to be the Deputy Attorney General (DAG). This is the number two position at the Department of Justice (DOJ). President Obama nominated him on May 24, 2010. The Senate Judiciary Committee (SJC) held a hearing on June 15, 2010, and approved his nomination on July 20, 2010. See, SJC web page for Cole. He is on the Senate's Executive Calendar, as of October 1, 2010. Gary Grindler is the acting DAG. President Obama's first DAG, David Ogden, served only briefly, and then returned to the Washington DC office of the law firm of Wilmer Hale.

9/29. The Senate confirmed Sarah Raskin to be a member of the Board of Governors of the Federal Reserve System for the unexpired term of 14 years from February 1, 2002. The Senate confirmed Janet Yellen to be a member for a term of 14 years from February 1, 2010. And, the Senate confirmed Yellen to be Vice Chairman for a term of 4 years. See, Congressional Record, September 29, 2010, at Page S7777.

9/29. The Senate confirmed David Buckley to be Inspector General of the Central Intelligence Agency (CIA). See, Congressional Record, September 29, 2010, at Page S7777.

9/29. The Senate recessed on September 29, 2010, without having confirmed several trade related nominees: Eric Hirschhorn (Under Secretary of Commerce for Export Administration), Michael Punke (Deputy U.S. Trade Representative), and Islam Siddiqui (Chief Agricultural Negotiator, Office of the U.S. Trade Representative).

9/29. The Senate recessed on September 29, 2010, without having confirmed Jacob Lew to be Director of the Office of Management and Budget (OMB).

9/29. The Federal Trade Commission (FTC) published a notice in the Federal Register that announces the membership of is Senior Executive Service (SES) Performance Review Board. See, Federal Register, September 29, 2010, Vol. 75, No. 188, at Pages 60125-60126.

9/26. Comcast and General Electric (80% owner of NBC Universal) announced in a release that Stephen Burke will become CEO of NBC Universal (NBCU) upon the close of Comcast's acquisition of 51% of NBCU from GE.

10/1. Microsoft filed a complaint in the U.S. District Court (WDWash) against Motorola alleging infringement of nine patents that it states are related to smart phone technology. Microsoft filed a related Section 337 complaint (19 U.S.C. § 1337) with the U.S. International Trade Commission (USITC) to prevent importation of allegedly infringing devices.

Microsoft did not name as a defendant Google, which developed the Android operating system.

The complaint alleges that "Motorola is engaged in the design, manufacture, importation into the United States, and sale after importation of smartphones and associated software applications and services. Motorola markets and sells these products worldwide through its channel business partners, telecom service providers, and various retail companies, both at retail stores and through company websites."

Microsoft is the assignee of, and alleges infringement of, the following U.S. Patents:

• 5,664,133, titled "Context sensitive menu system/menu behavior"
• 6,370,566, titled "Generating meeting requests and group scheduling from a mobile device"
• 7,644,376, titled "Flexible architecture for notifying applications of state changes"
• 5,758,352, titled "Common name space for long and short filenames"
• 6,621,746, titled "Monitoring entropic conditions of a flash memory device as an indicator for invoking erasure operations"
• 6,826,762, titled "Radio interface layer in a cell phone with a set of APIs having a hardware-independent"
• 6,909,910, titled "“Method and system for managing changes to a contact database"
• 5,579,517, titled "Common name space for long and short filenames"
• 6,578,054, titled "Method and system for supporting off-line mode of operation and synchronization using resource state information"

Microsoft's Horacio Gutierrez stated in a release that this action is "for infringement of nine Microsoft patents by Motorola's Android-based smartphones. The patents at issue relate to a range of functionality embodied in Motorola's Android smartphone devices that are essential to the smartphone user experience, including synchronizing email, calendars and contacts, scheduling meetings, and notifying applications of changes in signal strength and battery power."

He stated in a second release that "That Microsoft has important patents in this area should not surprise anyone -- we've spent over 30 years developing cutting-edge computer software."

He added that "Our action today merely seeks to ensure respect for our intellectual property rights infringed by Android devices; and judging by the recent actions by Apple and Oracle, we are not alone in this respect."

For more on Apple v. HTC, see story titled "Apple Sues HTC for Patent Infringement" in TLJ Daily E-Mail Alert No. 2,055, March 4, 2010.

For more on Oracle v. Google, see story titled "Oracle Files Patent Infringement Complaint Against Google" in TLJ Daily E-Mail Alert No. 2123, August 11, 2010.

Microsoft has not yet released the next version of its mobile phone operating system, Windows Phone 7.

This case is Microsoft Corp. v. Motorola, Inc., U.S. District Court for the Western District of Washington, D.C. No. 2 :10-cv-01577.

The House is in recess until November 15.

The Senate is in recess until November 12, except for pro forma sessions.

Day two of a three day event hosted by the Future of Music Coalition (FOMC) titled "Future of Music Coalition Policy Summit". See, notice. Location: Georgetown University, 37th and O Streets, NW.

Extended deadline to file amendments with the Federal Communications Commission to pending waiver requests or renewal applications or to file requests for permanent waivers of the newspaper/broadcast cross-ownership rule. See, FCC Order adopted and released on June 29, 2010. It is DA 10-1181 in MB Docket No. 06-121, MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, MM Docket No. 00-244, MB Docket No. 04-228, and MM Docket No. 99-360.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) to assist it in preparing its annual National Trade Estimate Report on Foreign Trade Barriers. The OUSTR seeks comments on, among other things, lack of intellectual property protection, trade restrictions affecting electronic commerce, and investment barriers, and technology transfer requirements. See, notice in the Federal Register, August 6, 2010, Vol. 75, No. 151, at Pages 47675-47676. See also, story titled "OUSTR Seeks Comments on Foreign Trade Barriers" in TLJ Daily E-Mail Alert No. 2,120, August 6, 2010.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "A Guide to the Internet Political Landscape". The speakers will be Rob Atkinson (ITIF), Adam Thierer (Progress & Freedom Foundation), and Morgan Reed (Association for Competitive Technology). The ITIF will webcast this event. See, registration page. Location: ITIF, Room 610A, 1101 K St., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ronald A. Katz Technologies v. American Airlines, App. Ct. No. 2009-1450, a patent case regarding interactive call processing. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Papyrus Technology Corp. v. New York Stock Exchange, App. Ct. No. 2010-1166, a patent case regarding wireless computer systems. Location: Courtroom 402, 717 Madison Place, NW.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Privacy & Data Security Committee will host a brown bag lunch titled "Pay It Forward -- The Smart Tween/Teen's Guide to Online Safety". The speakers will be Stephen Balkam (Family Online Safety Institute), David Pierce (NCTA), and John Heitmann (Kelley Drye & Warren). Location: USTelecom, Suite 400, 607 14th St., NW.

1:00 - 3:00 PM. The Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC) will meet. The purpose of this meeting is to discuss the Exascale Subcommittee Report. Public attendance is by teleconference only. Contact Melea Baker by October 4 at 301-903-7486 to receive a call in number. See, notice in the Federal Register, September 22, 2010, Vol. 75, No. 183, at Pages 57742-57743.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in St. Clair Intellectual Property Consultants v. Canon, App. Ct. No. 2009-1052, a patent case regarding digital camera technology. Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Acacia Media Technologies v. Mediacom Communications, App. Ct. No. 2010-1081. Location: Courtroom 201.

5:30 - 7:30 PM. The The Institute for Policy Innovation (IPI) will host a reception that precedes its October 6 event titled "IPI Communications Summit". Location: Room HVC-201, Capitol Building.

Day three of a three day event hosted by the Future of Music Coalition (FOMC) titled "Future of Music Coalition Policy Summit". See, notice. Location: Georgetown University, 37th and O Streets, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [23 pages in PDF] regarding writing its next Section 706 report to the Congress. See, FCC Public Notice. The FCC adopted and released this NOI on August 6, 2010. It is FCC 10-148 in GN Docket No. 10-159.

Deadline to submit comments to the Federal Election Commission (FEC) regarding its draft Advisory Opinion 2010-19. This draft states that "Google, Inc. asks whether disclaimers are required on text ads generated when Internet users use Google's search engine to perform searches. The Commission concludes that disclaimers are not required to be appended to text ads on behalf of candidates or political committees generated through Google's AdWords program." See, FEC release.

9:00 AM - 1:00 PM. The Institute for Policy Innovation (IPI) will host an event titled "IPI Communications Summit". Lunch will be served. For more information, or to register, contact Erin Humiston at 972-874-5139 or erin at ipi dot org. Location: Reserve Officers Association Building, 5th floor, 1 Constitution Ave., NE.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Micron Technology v. Rambus, App. Ct. No. 2009-1263, and Hynix Semiconductor v. Rambus, App. Ct. No. 2009-1299. Location: Courtroom 201, 717 Madison Place, NW.

6 10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in ESN v. Cisco Systems, App. Ct. No. 2010-1185, a patent case regarding VOIP technology. Location: Courtroom 402, 717 Madison Place, NW.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice and Young Lawyers Committees will host a brown bag lunch titled "Engineering for Lawyers: How Understanding Basic RF Issues Can Help You Advocate Better for Your Clients". The speaker will be Mitchell Lazarus (Fletcher Heald & Hildreth). For more information, contact Mark Brennan at mark dot brennan at hoganlovells dot com or Laura Stefani at lstefani at g2w2 dot com. Location: Hogan Lovells, 555 13th St., NW.

TIME? The Office of the U.S. Trade Representative (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). See, notice in the Federal Register, August 3, 2010, Vol. 75, No. 148, at Pages 45693-45694. Location?

Extended deadline to submit to the Department of Commerce's (DOC) Bureau of Industry and Security proposals for members of the President's Export Council Subcommittee on Export Administration (PECSEA). The BIS seeks "private-sector members with senior export control expertise and direct experience in one or more of the following industries: ... semiconductors, commercial communication satellites, high performance computers, telecommunications ..." See, notice in the Federal Register, September 9, 2010, Vol. 75, No. 174, at Page 54857.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Honeywell v. Nokia, App. Ct. No. 2010-1121. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Hitachi Koki Co. v. Kappos, App. Ct. No. 2009-1548. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Juniper Networks v. Graphon, App. Ct. No. 2010-1143. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cheetah Omni v. Samsung Electronics, App. Ct. No. 2010-1169. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) in response to its notice in the Federal Register requesting public comments regarding its foreign policy based export controls, including its regulation of "encryption items", "communication intercepting devices, software and technology", and "certain general purpose microprocessors". See, Federal Register, September 8, 2010, Vol. 75, No. 173, at Pages 54540-54541.

Deadline to submit comments to the Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) in advance of its October 14, 2010, closed meeting. The agenda for the meeting includes "Lessons Learned from the cyber exercise". See, notice in the Federal Register, September 27, 2010, Vol. 75, No. 186, at Page 59278.

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

5:00 PM. Deadline to submit comments to the National Science Foundation (NSF) National Coordination Office (NCO) for Networking and Information Technology Research and Development (NITRD) regarding the draft NITRD Strategic Plan. See, notice in the Federal Register, September 21, 2010, Vol. 75, No. 182, at Page 57521.

Deadline to submit comments to the Commodity Futures Trading Commission's (CFTC) Technology Advisory Committee in advance of its October 12, 2010, meeting. See, notice in the Federal Register, September 24, 2010, Vol. 75, No. 185, at Pages 58367-58368.

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