3/22. The U.S. District Court (SDNY) issued its opinion [48 pages in PDF] in Authors Guild v. Google, denying, without prejudice, the motion for approval of the proposed class action settlement.

The District Court concluded the Amended Settlement Agreement (ASA) [173 pages in PDF] under review "is not fair, adequate, and reasonable", as required by Rule 23, Federal Rules of Civil Procedure.

Rule 23(e)(2) provides that "If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate."

The District Court, Judge Denny Chin presiding, elaborated that "As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an ``opt-out´´ settlement to an ``opt-in´´ settlement. ... I urge the parties to consider revising the ASA accordingly."

The District Court explained that "While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action -- which was brought against defendant Google ... to challenge its scanning of books and display of "snippets" for on-line searching -- to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners."

"Indeed," the Court wrote, "the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."

The District Court also announced that it will hold a status conference on April 25.

Reaction. The Association of American Publishers (AAP) stated in a release that while the just released order "is not the final approval we were hoping for, it provides clear guidance to all parties as to what modifications are necessary for its approval."

The AAP added that "The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well."

The Authors Guild's President Scott Turow stated in a release that "we'll be studying Judge Chin's decision and plan on talking to the publishers and Google with the hope that we can arrive at a settlement within the court’s parameters that makes sense for all parties."

The Consumer Watchdog's John Simpson stated in a release that "Google's entire business model is to never ask permission, but to seek forgiveness if necessary".

He added that the District Court "has ruled simply that you can't take other people's property and use it without asking. This should send the message to the engineers at the Googleplex that the next time they want to use someone's intellectual property, they need to ask permission."

He also said that "Google's business practices continue to raise antitrust questions that need to be investigated".

The Public Knowledge's (PK) Gigi Sohn stated in a release that "We are pleased that Judge Chin has rejected this settlement, even though we agree with him that there are benefits to Google's book project. We were also pleased that the judge agreed with us in the specific issue of orphan works, as he ruled: `Google's ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.´"

Background on Google Books Litigation and Settlement. The Author's Guild filed a class action complaint against Google in the U.S. District Court (SDNY) on September 20, 2005. See, story titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005.

Various large book publishers filed a complaint against Google in the same District Court on October 19, 2005. See, story titled "Major Book Publishers Sue Google for Digitizing Copyrighted Books" in TLJ Daily E-Mail Alert No. 1,237, October 20, 2005. Both complaints alleged copyright infringement in connection with Google scanning and distributing books.

See also, story titled "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005, story titled "Google, Publishers and Authors Debate Google's Print for Libraries Program" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005, and story titled "Microsoft Counsel Says Google Systematically Violates Copyright" in TLJ Daily E-Mail Alert No. 1,547, March 6, 2007.

Google, publishers and the Authors Guild announced their original proposed class action settlement in October of 2008. They announced an amended agreement in November of 2009. See, story titled "Amended Settlement Agreement Filed in Google Books Case" in TLJ Daily E-Mail Alert No. 2,015, November 16, 2009.

The Department of Justice (DOJ) filed pleadings criticizing components of the agreements. See, story titled "DOJ Files Pleading in Google Books Case" in TLJ Daily E-Mail Alert No. 1,985, September 21, 2009, and story titled "DOJ Criticizes Amended Google Books Settlement" in TLJ Daily E-Mail Alert No. 2,043, February 12, 2010.

Finally, see "Commentary: Google's Net Neutrality Deal Compared to Google's Books Deal" in TLJ Daily E-Mail Alert No. 2,121, August 9, 2010.

3/21. Microsoft filed complaints in the U.S. District Court (WDWash) alleging patent infringement, and the U.S. International Trade Commission (USITC) alleging violation of Section 337, against Barnes & Noble, Inc. (BNI), Foxconn International Holdings Ltd., Inventec Corporation (IC), and others.

Microsoft alleges in its District Court complaint [9 pages in PDF] that Barnes & Noble's Android based e-reader, named Nook, and tablet named Nook Color, manufactured by Foxconn, Inventec and others, infringe five U.S. patents held by Microsoft:

• 5,778,372, titled "Remote retrieval and display management of electronic document with incorporated images".
• 6,339,780, titled "Loading status in a hypermedia browser having a limited available display area".
• 5,889,522, titled "System provided child window controls".
• 6,891,551, titled "Selection handles in editing electronic documents".
• 6,957,233, titled "Method and apparatus for capturing and rendering annotations for non-modifiable electronic content".

Microsoft seeks compensatory damages, treble damages for willful infringement, costs and attorneys fees, and injunctive relief from the District Court.

The District Court action is Microsoft Corporation v. Barnes & Noble, Inc., et al., U.S. District Court for the Western District of Washington, D.C. No. 2:11-cv-00485. Microsoft is represented in this action by the law firms of Danielson Harrigan, Woodcock Washburn, and Sidley Austin.

Microsoft's Horacio Gutierrez stated in a release that Microsoft has created a "patent licensing program for Android device manufacturers", and that "HTC, a market leader in Android smartphones, has taken a license under this program." However, Barnes & Noble, Foxconn and Inventec have not received licenses, and therefore, "Their refusals to take licenses leave us no choice but to bring legal action to defend our innovations".

This action pertains to e-book reader technology. However, it is related to other patent infringement actions involving Android mobile computing and communications technology. For example, Microsoft sued Motorola in October of 2010. See, story titled "Microsoft Alleges That Motorola's Android Smart Phones Infringe Its Patents" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010.

In other similar actions, Nokia has sued Apple, Apple has sued HTC, and Oracle has sued Google. See, story titled "Nokia Files Section 337 Complaint Against Apple" in TLJ Daily E-Mail Alert No. 2,030, December 30, 2009; story titled "Apple Sues HTC for Patent Infringement" in TLJ Daily E-Mail Alert No. 2,055, March 4, 2010; and, story titled "Oracle Files Patent Infringement Complaint Against Google" in TLJ Daily E-Mail Alert No. 2123, August 11, 2010.

Gutierrez stated in a second release that "Together with the patents already asserted in the course of our litigation against Motorola, today's actions bring to 25 the total number of Microsoft patents in litigation for infringement by Android smartphones, tablets and other devices. Microsoft is not a company that pursues litigation lightly. In fact, this is only our seventh proactive patent infringement suit in our 36-year history. But we simply cannot ignore infringement of this scope and scale."

Foxconn, which is based in Taiwan, with facilities in the People's Republic of China, makes handsets and wireless communication devices.

Inventec, which is based in Taiwan, makes notebooks, enterprise servers, storage products, wireless communications, network applications, consumer mobile devices, and consumer electronic devices.

Microsoft's USITC action is brought under 19 U.S.C. § 1337, regarding patent infringement by imported goods.

A spokesman for Barnes & Noble stated in an e-mail to TLJ that "As a matter of policy we do not comment on litigation."

3/18. Apple filed a complaint in the U.S. District Court (NDCal) against Amazon alleging trademark infringement and unfair competition in connection with Amazon's use of the term "Appstore".

Amazon just launched a web section titled "Amazon Appstore for Android" at the URL of www.amazon.com/appstore. Amazon stated in a release that "Customers can now find, discover -- test! -- and buy Android apps using the convenient shopping experience that Amazon customers know and love."

Apple, maker of iPhone and iPad products, uses the term "App Store". See for example, Apple web page for iPhone "apps".

Apple filed an application with the U.S. Patent and Trademark Office (USPTO) on July 17, 2008, for a trademark registration for "App Store". See, application number 77525433. The USPTO's Trademark Electronic Search System (TESS) further states that "An opposition after publication is pending at the Trademark Trial and Appeal Board." The Trademark Trial and Appeal Board's (TTAB) Inquiry System states that Microsoft filed the opposition.

Julius Genachowski, Chairman of the Federal Communications Commission (FCC), gave a speech on March 22 in which he stated that "In 2009, people downloaded 300 million mobile apps. Last year, that number increased more than 16 times to 5 billion downloaded mobile apps. By 2015, the ``apps economy,´´ is projected to generate $38 billion in sales."

The word "app" is commonly used as a shorter form of "application software". For example, the Wikipedia entry for "Application software" states that "Application software, also known as an application or an ``app´´, is computer software designed to help the user to perform singular or multiple related specific tasks."

The House will be in recess Monday, March 21 through Friday, March 25. It will next meet on Tuesday, March 29.

The Senate will be in recess Monday, March 21, through Friday, March 25. It will next meet at 2:00 PM on Monday, March 28.

9:00 AM - 5:00 PM. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). See, notice in the Federal Register, February 22, 2011, Vol. 76, No. 35, at Pages 9765-9766. Location: American Geophysical Union, 2000 Florida Ave., NW.

TIME? The Office of the U.S. Trade Representative (OUSTR) will hold a hearing regarding preparation of its 2011 Special 301 report, regarding countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on IP protection. See, notice in the Federal Register, December 30, 2010, Vol. 75, No. 250, at Pages 82424-82426. See also, story titled "OUSTR Seeks Input for Special 301 Report" in TLJ Daily E-Mail Alert No. 2,191, January 3, 2011. Location: OUSTR, 1724 F St., NW.

TIME? The National Science Foundation (NSF) will host an event titled "Assumption Buster Workshop: Defense-in-Depth Is a Smart Investment for Cyber Security". See, notice in the Federal Register, February 7, 2011, Vol. 76, No. 25, at Pages 6637-6638. Location?

9:00 AM - 12:00 NOON. Day two of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). See, notice in the Federal Register, February 22, 2011, Vol. 76, No. 35, at Pages 9765-9766. Location: American Geophysical Union, 2000 Florida Ave., NW.

10:00 - 11:30 AM. The Heritage Foundation will host a panel discussion titled "Do Rare Earths Require Congressional Action?". The speakers will be Robert Jaffe (MIT), Michael Levi (Council on Foreign Relations ), Derek Scissors (Heritage) and Walter Lohman (Heritage). See, notice and registration page. This event is free and open to the public. Location: Heritage, 214 Massachusetts Ave., NE.

10:30 AM - 12:00 NOON. The New America Foundation (NAF) will host a panel discussion titled "Measurement Lab: Advancing Network Research and Visualizing Broadband Measurement Data". The speakers may include be Vint Cerf (Google), Sacha Meinrath (NAF), Aneesh Chopra (EOP), Anne Neville (NTIA), and Taylor Reynolds (OECD). See, notice and registration page. Location: NAF, Suite 400, 1899 L St., NW.

12:15 - 1:45 PM. The DC Bar Association will host an event titled "An End to the Kludge?: Potential Issues in the Transition to IPv6". The speakers will be Robert Cannon (FCC), Bobby Flaim (FBI), Doug Montgomery (NIST Advanced Network Technologies Division), and Bill Woodcock (Packet Clearing House). See, notice. The DC Bar sometimes excludes reporters. The price to attend ranges from free to $15. For more information, call 202-626-3463. Location: Dow Lohnes, 8th floor, 1225 New Hampshire Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications Committee will host a brown bag lunch titled "Public Safety Interoperability".  The speakers will include Robert Pavlak (Office of the Chief Technology Officer, District of Columbia), Genaro Fullano (FCC's Public Safety and Homeland Security Bureau), Chris Essid (Director of the DHS's Office of Emergency Communications), and Morgan Wright (Alcatel-Lucent). Location: Mintz Levin, Suite 900, 701 Pennsylvania Ave., NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Beyond Exports: A Better Case for Free Trade". The speakers will be Daniel Ikenson (Cato), Scott Lincicome (White & Case), Donald Boudreaux (George Mason University), Brandon Arnold (Cato). See, notice and registration page. This event is free and open to the public. Lunch will be served. Location: Room B-369, Rayburn Building.

Supreme Court conference day (discussion of argued cases, and decision on cert petitions). Closed.

The House will not meet.

The Senate will return from its March recess. At 2:00 PM it will resume consideration of S 493 [LOC | WW], the "SBIR/STTR Reauthorization Act of 2011".

8:00 AM - 5:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) National Science Board's (NSB) Task Force on Data Policies. The agenda for this meeting includes discussion of "Data-Intensive Science" and "High Performance Cyberinfrastructure". See, notice in the Federal Register, March 21, 2011, Vol. 76, No. 54, at Pages 15349-15350. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [31 pages in PDF] regarding how dynamic access radios and techniques can provide more intensive and efficient use of spectrum. The FCC adopted and released this NOI on November 30, 2010. It is FCC 10-198 in ET Docket No. 10-237. See, notice in the Federal Register, December 28, 2010, Vol. 75, No. 248, at Pages 81558-81559. See also, story titled "FCC Adopts NPRM and NOI on Spectrum Innovation" 2,168, December 4, 2010.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding extending to June 30, 2012, the current freeze of jurisdictional separations category relationships and cost allocation factors. This NPRM is FCC 11-34 in CC Docket No. 80-286. The FCC adopted and released it on March 1, 2011. See, Federal Register, March 14, 2011, Vol. 76, No. 49, at Pages 13576-13579.

The House will return from its March recess.

8:30 AM - 12:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) National Science Board's (NSB) Task Force on Data Policies. The agenda for this meeting includes discussion of "Data-Intensive Science" and "High Performance Cyberinfrastructure". See, notice in the Federal Register, March 21, 2011, Vol. 76, No. 54, at Pages 15349-15350. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a presentation titled "Coordinated Effects in the 2010 Horizontal Merger Guidelines". The speaker will be Bob Marshall (Penn State) co-author of a paper [PDF] with the same title. For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

4:00 - 6:30 PM. The House Intelligence Committee (HIC) will hold a closed hearing. Location: Room HVC-304, House Visitor Center.

The Federal Communications Commission (FCC) will commence Auction 91, regarding certain FM Broadcast Construction Permits. See, September 21, 2010, FCC Public Notice (DA 10-1711 in AU Docket No. 10-183) and notice in the Federal Register, October 6, 2010, Vol. 75, No. 193, at Pages 61752-61756.

Deadline to submit comments to the Copyright Office (CO) in response to its Request for Information regarding commercial television broadcast stations that qualify as as specialty stations. See, notice in the Federal Register, January 28, 2011, Vol. 76, No. 19, at Pages 5213-5214

3/17. The U.S. Patent and Trademark Office (USPTO) announced that it is providing special accommodations "to patent and trademark applicants and owners affected by the catastrophic events that took place in Japan on March 11, 2011." For example, for certain patent applications and reexamination proceedings pending in the USPTO as of March 11, with inventors or assignees in an affected area, and with unexpired deadlines to file certain replies, the USPTO will grant requests to reset the time for responding. See, USPTO release.

3/22. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register requesting comments to assist it in preparing a "preliminary plan to review its existing significant regulations in response to the President Obama's Executive Order 13563 titled "Improving Regulation and Regulatory Review". The USPTO added that the purpose "is to determine whether any of these regulations should be modified, streamlined, expanded, or repealed in order to make the Office's regulatory program more effective and less burdensome." The deadline to submit comments is April 21, 2011. The just published request for comments is at Federal Register, March 22, 2011, Vol. 76, No. 55, at Pages 15891-15892. The Executive Order is at Federal Register, January 21, 2011, Vol. 76, No. 14, at Pages 3821-3823.

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