7/15. The Senate passed  S 517 [LOC | WW], the "Unlocking Consumer Choice and Wireless Competition Act", without debate, by unanimous consent, late on July 15, 2014.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, stated that "This legislation was a bipartisan effort to restore consumers' rights to unlock their cell phones so they can take their phones to the wireless network of their choice." See, Congressional Record, July 16, 2014, at Page S4546.

Sen. Leahy (at right) elaborated that "Once every 3 years, the Library of Congress undertakes a rulemaking under the Digital Millennium Copyright Act, DMCA, to establish exemptions to the DMCA's prohibition on circumventing technological measures that control access to copyrighted works. From 2006 to 2012, the Library granted an exemption for cell phone unlocking that allowed users to change wireless providers after complying with their contracts. In its 2012 rulemaking, the Library did not recognize an exemption for new cell phones purchased after January 26, 2013. This act reinstates the Librarian's prior determination, ensuring that consumers will be able to use their phones on the network of their choice after satisfying their contracts without running afoul of our copyright laws."

He added that this bill "ensures that consumers who lack the technological savvy to unlock their phones themselves can authorize others to do the unlocking for them, in order for the owner or their family member to connect to a chosen wireless network. Second, in recognition of the growing importance to consumers of other wireless devices, such as tablets, the act directs the Librarian of Congress to determine whether such devices should also be eligible for unlocking. That determination will be part of the Librarian's next triennial rulemaking under the DMCA, which is set to begin later this year."

The Senate Judiciary Committee (SJC) amended and passed this bill on July 10. See, story titled "Senate Judiciary Committee Approves Phone Unlocking Bill" in TLJ Daily E-Mail Alert No. 2,673, July 14, 2014.

The House passed a very similar bill, HR 1123 [LOC | WW], also titled the "Unlocking Consumer Choice and Wireless Competition Act", on February 25, 2014, by a vote of 295-114. See, Roll Call No. 64. See also, story titled "House Passes Bill to Allow Consumers to Unlock Their Cell Phones" in TLJ Daily E-Mail Alert No. 2,630, February 25, 2014.

Both bills would replace the provision in the Librarian of Congress's (LOC) fifth triennial rules, which ended the exemption for unlocking phones, with the provision that had been in the LOC's fourth triennial rules, which provided an exemption for unlocking phones.

Both bills would also direct the LOC to determine in its next anti-circumvention exemptions rulemaking whether "to include any other category of wireless devices in addition to wireless telephone handsets".

Both bills would allow consumers to receive assistance in unlocking their phones. Both provide that unlocking "may be initiated by the owner of any such handset or other device, by another person at the direction of the owner, or by a provider of a commercial mobile radio service or a commercial mobile data service at the direction of such owner or other person, solely in order to enable such owner or a family member of such owner to connect to a wireless telecommunications network, when such connection is authorized by the operator of such network".

The main difference is that the House bill, but not the Senate bill, adds that "Nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale, or to authorize the Librarian of Congress to authorize circumvention for such purpose under this Act, title 17, United States Code, or any other provision of law."

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, stated that "The bipartisan bill is pro-consumer and pro-competition. Ease in portability of devices will allow for more competition and more consumer choice ... I'm hopeful that the House will take up and pass our bill promptly."

7/17. Rep. Bob Goodlatte (R-VA) and Rep. Anna Eshoo (D-CA) sent a letter to Sen. Harry Reid (D-NV) and Sen. Patrick Leahy (D-VT) urging the Senate to expeditiously pass HR 3309 [LOC | WW], the "Innovation Act", a bill to provide for greater fee shifting in patent infringement litigation.

The two wrote that "This comprehensive bill targets abusive patent litigation. This comprehensive bill increases transparency, modernizes fee shifting, enhances education and outreach to small businesses, and better protects our nation's patent system."

HR 3309 would amend 35 U.S.C. § 285 to provide that "The court shall award, to a prevailing party, reasonable fees and other expenses incurred by that party in connection with a civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, unless the court finds that the position and conduct of the nonprevailing party or parties were reasonably justified in law and fact or that special circumstances (such as severe economic hardship to a named inventor) make an award unjust." (Parentheses in original.)

Rep. Goodlatte, who chairs the House Judiciary Committee (HJC), introduced this bill on October 23, 2013. The HJC passed this bill on November 20, 2013 by a vote of 33-5. The full The House passed it on December 5, 2013 by a vote of 325-91. Republicans voted 195-27  Democrats voted 130-64. See, Roll Call No. 629.

Rep. Eshoo (at right) is a cosponsor of this bill. She is a member of the House Commerce Committee (HCC). She represents a Silicon Valley district.

Neither the full Senate, nor the Senate Judiciary Committee (SJC), which Sen. Leahy chairs, has taken any action on this bill.

However, Sen. Leahy and others introduced S 1720 [LOC | WW], the "Patent Transparency and Improvements Act of 2013" on November 18, 2013. That bill was listed numerous times earlier this year on the agenda for the SJC's weekly executive business meeting. Then, on May 21, 2014, Sen. Leahy announced that the SJC has suspended consideration of that bill. See, story titled "Sen. Leahy Announces Failure to Reach Consensus on Patent Bill" in TLJ Daily E-Mail Alert No. 2,660, May 20, 2014.

Rep. Goodlatte and Rep. Eshoo wrote that "inaction is simply inexcusable".

They argued that their bill "has helped set a clear bipartisan map toward eliminating the abuses of our patent system, discouraging frivolous patent litigation and keeping U.S. patent laws up to date."

7/10. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade (SCMT) amended and approved HR __, a yet to be introduced bill titled the "Targeting Rogue and Opaque Letters Act of 2014", or "TROL Act".

This bill would regulate patent infringement demand letter practices by amending the Federal Trade Commission Act's (FTC Act) ban on unfair or deceptive practices in interstate commerce.

Rep. Lee Terry (R-NE), the Chairman of the SCMT, stated at the markup that this bill "takes on the deceptive patent demand letter problem. ... Any solution involves difficult balance between First Amendment limitations, legitimate patent holders, and small businesses that are being harmed."

Rep. Terry (at right) offered this summary: "For those who receive trolling letters, the bill provides assurances that if they receive a demand letter, there are two important protections: One, it requires the sender to provide enough information for the recipient to appropriately respond; and two, it bars the sender from making false or misleading statements."

There is also a House Judiciary Committee (HJC) bill that is directed at meritless claims of patent infringement. It is HR 3309 [LOC | WW], the "Innovation Act". However, its key provision is fee shifting in patent litigation. It does provide for regulation of pre-litigation demand letter practices, under the FTC Act, or by any other means. The Senate has not passed that bill.

Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), announced on May 21, 2014 that the SJC has suspended consideration its patent reform bill, S 1720 [LOC | WW], the "Patent Transparency and Improvements Act of 2013". See, story titled "Sen. Leahy Announces Failure to Reach Consensus on Patent Bill" in TLJ Daily E-Mail Alert No. 2,660, May 20, 2014.

Bill Summary. Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45, is a wide reaching anti-fraud provision. It provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The TROL Act would amend Section 5 to provide that "It shall be an unfair or deceptive act or practice within the meaning" of Section 5 "for a person, in connection with the assertion of a United States patent, to engage in a pattern or practice of sending written communications that state or represent that the recipients are or may be infringing, or have or may have infringed, the patent and bear liability or owe compensation to another, if" the sender makes any of several enumerated "bad faith" representations, such as that it is "a person with the right to license or enforce the patent" when in fact it is not.

Similarly, the bill provides that it shall be an unfair or deceptive practice to seek compensation "in bad faith". The bill enumerates several prohibitions, such as seeking compensation on "a patent claim that has been held to be unenforceable due to inequitable conduct".

In addition, the bill provides that it shall be an unfair or deceptive practice to fail to include, in bad faith, any of several enumerated disclosures, such as the patent alleged to have been infringed, the person claiming the right, and the product, service or activity alleged to infringe the patent.

An amendment approved at the markup provides in awkward language that "mistake" is an affirmative defense.

It provides that "there shall be an affirmative defense that statements, representations, or omissions were not made in bad faith ... if the sender can demonstrate that such statements, representations, or omissions were mistakes made in good faith, which may be demonstrated by evidence that the sender in the usual course of business sends written communications that do not violate the provisions of this Act. That such statements, representations, or omissions were mistakes made in good faith may also be demonstrated by other evidence.

The bill provides for enforcement by the FTC and state attorneys general.

The bill also contains broad preemption language. It provides that "This Act preempts any law, rule, regulation, requirement, standard, or other provision having the force and effect of law of any State, or political subdivision of a State, expressly relating to the transmission or contents of communications relating to the assertion of patent rights."

SCMT Markup and Debate. The vote on final passage was 13-6. Republicans voted 11-0. Democrats voted 2-6. See, roll call. Democrats expressed concerns regarding the bill's preemption of state laws, and failure to more aggressively bar certain demand letter practices.

Rep. Fred Upton (R-MI), the Chairman of the HCC, wrote in his opening statement that "the TROL Act targets a not-so-bright spot in today's marketplace -- that of so-called patent trolls who prey on small businesses owners. According to the White House, trolls have sent over 100,000 letters to small businesses across the country -- letters that amount to little more than a shakedown scheme. Balancing the need to stem this noxious tide is the need to ensure that we don't make it overly burdensome for legitimate patent holders to protect their property rights."

Rep. Upton continued that "The overarching intent of this bill is to provide the FTC with an extra set of tools to augment its current section 5 authority. If the FTC chooses, we want the agency to seek civil penalties under this bill -- but only for actors who were knowingly or recklessly committing harmful acts. If someone engages in any of the specified activities without the requisite intent, the FTC can still enforce against those individuals using their current Section 5 authority to seek injunctive relief. The same is true for activities that are not included in this bill -- we want the FTC to continue to be able to use its current authority to seek injunctions, as indicated by the savings clause."

Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC, voted against this bill. He stated at the markup that "The goal of this bill might be well intentioned, but I worry about the drafting. I think it is flawed. The States have been leaders in fighting false and misleading patent demand letters, yet this bill would preempt the 15 specific laws so far approved by States. In addition, the bill would place a number of additional burdens on State attorneys general and the Federal Trade Commission, particularly in requiring proof that the sender knew that representations of the letter were false or misleading. This is a departure from consumer protection law and one that could make investigations and enforcement far more difficult. Furthermore, as FTC staff has explained, the requiring knowledge makes provisions of this bill effectively unenforceable. So I cannot support that legislation."

Rep. Terry offered and withdrew an amendment regarding disclosure of the "identity of the person asserting their right to license the patent". He might offer this again at the full HCC markup.

The SCMT approved an amendment by voice vote offered by Rep. Terry that replaces the bill's language establishing an affirmative defense. Rep. Waxman argued that it could "eviscerate" the rest of the bill. Rep. Jan Shakowski (D-IL), the ranking Democrat on the SCMT, offered similar criticism of this amendment.

See, transcript [24 pages in PDF] and video [YouTube] of July 9 opening statements, and transcript [52 pages in PDF] and video [54 minutes in YouTube] of July 10 markup.

Reaction. Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "Those misusing the patent system scored a second victory this time in the House by lobbying to advance ineffective legislation that purports to rein in letters demanding money by alleging patent infringement. We are very concerned that, with so many main street businesses and even those buying a scanner at Staples getting hit with dubious patent demand letters, many in Congress will settle for bad legislation like the TROL Act in a mistaken attempt to address the problem. For those who understand the patent legal system, the TROL Act would actually empower trolls and insulate abusive conduct -- that's why patent trolls are supporting it and those like us who want real reforms are not."

Victoria Espinel, head of the BSA Software Alliance, stated in a release that "Abusive demand letters are a scourge on the patent system. Well-crafted legislation will help curb these abuses. This is one important piece of the broader patent reform effort we need in order to make life harder for bad actors and better for innovators."

Jon Potter of the Application Developers Alliance (ADA) stated in a release that "Patent trolls use deceptive demand letters to extort unjustified payments from companies that cannot afford to fight back in court ... Although comprehensive patent reform legislation is still urgently needed, and developers nationwide were disappointed when the Senate postponed consideration of Chairman Leahy's patent reform legislation, demand letter legislation will give innovators some critical relief."

Wayne Sobon of the American Intellectual Property Law Association (AIPLA) sent a letter to the SCMT stating that "we support moving the draft bill forward at this time". He explained that "a number of the most troubling and visible abusive practices driving some of the current patent reform debate may be appropriately dealt with under the laws governing consumer fraud and deceptive trade practices. Providing FTC oversight with respect to the se abusive practices as described in the bill will deal with the abusive behavior itself, and hopefully ameliorate its negative impact on the patent system as a whole."

The Coalition for 21st Century Patent Reform also expressed support for this bill. Its members include large pharmaceutical and health care companies, such as Abbott, Eli Lilly, Merck, GlaxoSmithKline, Pfizer and Medtronic. Its members also some of the other largest US corporations, including Dow, DuPont, Exxon Mobil, GE, Johnson & Johnson, Northrup Grumman, and Weyerhaeuser.

The Innovation Alliance also expressed support for the bill.

The House will meet at 9:00 AM for legislative business. The House will consider non-technology related bills. See, Rep. Cantor's schedule.

The Senate will meet at 9:30 AM.

9:00 AM. The House Intelligence Committee (HCC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Building.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Regulatory Reform, Commercial and Antitrust Law will hold a hearing titled "Guilty until Proven Innocent? A Study of the Propriety & Legal Authority for the Justice Department’s Operation Choke Point". Webcast. See, notice. Location: Room 2141, Rayburn Building.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology and Subcommittee on Health will hold a hearing titled "21st Century Technology for 21st Century Cures". The witnesses will be Robert Jarrin (Qualcomm), Paul Misener (Amazon), Jonathan Niloff (McKesson Corporation), Dan Riskin (Health Fidelity), and Dave Vockell (LyfeChannel). Webcast. See, notice. Location: Room 2123, Rayburn Building.

9:30 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of the nominations of Pamela Harris (USCA/4thCir), Pamela Pepper (USDC/EDWisc), Brenda Sannes (USDC/NDNY), Patricia McCarthy (U.S. Court of Federal Claims), and Jeri Kaylene Somers (U.S. Court of Federal Claims). See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The Role of Trade and Technology in 21st Century Manufacturing". The witnesses will be Jacklyn Sturm (Intel), Ray Kimber (Consumer Electronics Association), and Stephen Ezell (Information Technology and Innovation Foundation). See, notice. Location: Room 215, Dirksen Building.

1:00 PM. The U.S. Telecom will host a webcast presentation titled "Successful FTTP Deployment Strategies for MDUs". The speaker will be Kevin McClain. Free. See, notice.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Talking SMAC: Contracting for Social, Mobile, Analytics and Cloud Computing". The speakers will be Lei Shen, Mark Oram, Mark Irving, and Joseph Pennell. Prices vary. CLE credits. See, notice.

2:00 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "The Federal Research Portfolio: Capitalizing on Investments in R&D". The witnesses will be Vinton Cerf (Google), Mariette DiChristina (Scientific American), Neal Lane (Rice University), and Stephen Fienberg (Carnegie Mellon University). Webcast. Location: Room 253, Russell Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room 219, Hart Building.

Rep. Cantor's schedule states that "no votes are expected in the House".

12:00 NOON - 1:15 PM. The Net Caucus will host a panel discussion titled "The NSA Surveillance Programs: Assessing The Damage to U.S. Commerce, Confidence & Credibility". The speakers will be Stewart Baker (Steptoe & Johnson), Kevin Bankston (New America Foundation), Chris Hopfensperger (BSA Software Alliance), and Shane Tews (American Enterprise Institute). Free. Open to the public. Lunch will be served. See, notice. Location: Room 2226, Rayburn Building.

12:00 NOON - 2:00 PM. The Federalist Society will host a panel discussion titled "2014 Annual Supreme Court Round Up". The price to attend ranges from $50 to $60. Lunch will be served. See, notice. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host an event at which Travis LeBlanc, acting Chief of the FCC's Enforcement Bureau, will speak and receive questions and comments. The FCBA asserts that this is a FCBA event. Free. Bring your own lunch. No webcast. Location: Hogan Lovells, 13th floor, 555 13th St.,  NW.

12:30 - 5:30 PM. The National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences will meet. See, notice in the Federal Register, Vol. 79, No. 118, June 19, 2014, at Pages 35191-35192. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

EXTENDED FROM JULY 15. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) that proposes rules for the regulation of the network management practices of broadband internet access service (BIAS) providers. The FCC adopted and released this item on May 15, 2014. It is FCC 14-61 in GN Docket No. 14-28. See also, stories titled "FCC Adopts Net Neutrality NPRM", "Summary of the FCC's Proposed Net Neutrality Rules", and "Net Neutrality NPRM and Pay for Priority Agreements" in TLJ Daily E-Mail Alert No. 2,659, May 19, 2014. See also, Public Notice (DA 14-1002) extending this deadline.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-82 Rev. 2 [255 pages in PDF] titled "Guide to Industrial Control Systems (ICS) Security".

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The Mobile Transformation: The Extraordinary Legal Implications of Billions of Mobile Devices". The speakers will be Lori Chang, Damier Xandrine, Stephen Wu, Lucy Thomson, and Ruth Bro. Prices vary. CLE credits. See, notice.

6:00 - 8:15 PM. The DC Bar Association will host a panel discussion titled "Where Was It Made? Legal Analysis of "Country of Origin" for Government Procurement, International Trade, and General Commerce". The speakers will be Myron Barlow, Don Luther (19CFR Trade Consulting), and Kimberly Welch (Meridian Law Group). The price to attend ranges from $89 to $129. CLE credits. No webcast. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

8:50 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host an event titled "Who Governs the Internet? A Conversation on Securing the Multistakeholder Process". The speakers will be Jeffrey Eisenach (AEI), Danny Sepulveda (Department of State), Steve DelBianco, (NetChoice), Laura DeNardis (American University), David Gross (Wiley Rein), Shane Tews (AEI), and Larry Strickling (National Telecommunications and Information Administration). Free. Open to the public. No CLE credits. Webcast. See, notice. Location: AEI, 12th Floor, 1150 17th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "CLS Bank and the Future of Patent-Eligibility for Computer-Implemented Inventions". The speakers will be Erika Arner (Finnegan Henderson), Michelle Holoubek (Sterne Kessler Goldstein & Fox), Michael Kiklis (Oblon Spivak), and Jeffrey Fougere (Hewlett Packard). The price to attend ranges from $25 to $35. No CLE credits. No webcast. No reporters allowed. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast presentation titled "iPad for Lawyers". The speakers will be Thomas Mighell and Paul Unger. The price to attend ranges from $150 to $195. CLE credits. See, notice.

6:00 PM. The National Press Club (NPC) will host a discussion of the book titled "Innovative State: How New Technologies Can Transform Government". The main speaker will be Aneesh Chopra, the author. The price to attend is $10. No webcast. See, notice. Location: NPC, 13th floor, 529 14th St., NW.

11:00 AM - 12:15 PM. The Heritage Foundation (HF) will host a panel discussion titled "Alliance Challenges in Northeast Asia: Perspectives on U.S.-Japan-South Korea Relations". The speakers will be Takeo Kawamura (Member of the Japanese House of Representatives), Bruce Klinger (HF) and Walter Lohman (HF). Free. Open to the public. Webcast. See, notice. Location: HF, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Social Impact of Open Data". The speakers will be Maureen Ohlhausen (FTC Commissioner), Sandra Moscoso (World Bank), Laurie Actman (Penn Center for Innovation), Daniel Castro (ITIF), Brian Rayburn (Symcat), and Emily Shaw (Sunlight Foundation). See, notice. Location: ITIF/ITIC, Suite 610, 1101 K St., NW.

1:00 - 4:15 PM. The DC Bar Association will host a program titled "Copyright Law and Litigation". The speaker will be Kenneth Kaufman (Manatt Phelps & Phillips). The price to attend ranges from $89 to $129. CLE credits. No webcast. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

2:30 PM. The Senate Commerce Committee (SCC) will meet in executive session. The agenda includes consideration of several non-technology related items. Webcast. Location: Room 253, Russell Building.

12:00 NOON. The Cato Institute will host a discussion of the book titled "Licensed to Lie: Exposing Corruption in the Department of Justice". The speakers will be Sidney Powell (author), Ronald Weich (University of Baltimore law school), Judge Alex Kozinski (USCA/9thCir), and Tim Lynch (Cato). Free. Open to the public. Webcast. Lunch will be served after the program. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The Future of Bulk Data Collection". The speakers will be Yael Weinman (Information Technology Industry Council), Todd Hinnen, Shirin Sinnar, and Elizabeth Goiten. Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The Fundamentals of Antitrust Economics". The speakers will be David Weiskopf, Donald Stockdale, Laila Haider, Joanna Tsai (advisor to FTC Commissioner Joshua Wright), and Aditi Mehta. Prices vary. CLE credits. See, notice.

EXTENDED FROM JUNE 9. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) regarding whether to eliminate or modify the network non-duplication and syndicated exclusivity rules. The FCC adopted and released this FNPRM on March 31, 2014. It is FCC 14-29 in MB Docket No. 10-71. See, notice in the Federal Register, Vol. 79, No. 69, April 10, 2014, at Pages 19849-19860, and Public Notice (DA 14-525) extending deadlines.

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