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Tech Law Journal |
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| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
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11/30. The Kentucky Public Service Commission (KPSC) issued an Order compelling BellSouth to issue a Kentucky- specific tariff regarding wholesale DSL service. The Complainant, Iglou Internet Services, an ISP in Louisville Kentucky, alleged that BellSouth structured its wholesale DSL tariff to ensure that only the largest ISPs (such as its own) could obtain the best discount available, thus precluding small ISPs (such as Iglou) from offering DSL service. The tariff, among other things, required a purchase of 40,000 lines to qualify for the best discount. The KPSC found that "the wholesale tariff of BellSouth unreasonably discriminates against most Kentucky independent ISPs and will not advance DSL service in Kentucky", and ordered it to file a new tariff. Iglou is represented by Jonathan Amlung. 11/30. Counsel for the Utah Lighthouse Ministry, Brian Barnard (Utah Legal Clinic), announced that a settlement has been reached in the copyright case Intellectual Reserve v. Utah Lighthouse Ministry. The intellectual property arm of the Mormon church filed suit alleging copyright infringement, and removal of copyright management information, in connection with defendants' publication in its web site of a Mormon church handbook. See, draft Permanent Injunction. Defendants agree not to publish quotes longer than 50 words, and not to hyperlink to other infringing web sites. 11/30. The FCC adopted a Order to permit non-geostationary satellite orbit (NGSO) fixed-satellite service (FSS) providers to operate in various segments of the Ku-band, and adopted rules and policies to govern these operations. NGSO FSS can provide high speed Internet access. [ET Docket No. 98-206.] See, FCC release. 11/30. The U.S Court of Appeals (DCCir) issued its order [PDF] granting the motion of the Dept. of Justice to file one 150 joint brief with the state plaintiffs in the Microsoft antitrust appeal. 11/30. The USPTO again extended its deadline for filing Requests for Agreements regarding the USPTO's Electronic Filing Partnership. The new deadline is March 1, 2001. See, notice of extension. 11/30. The USPTO's Patent Public Advisory Committee released its first annual report [very large MS Word file]. It concluded that the diversion of user fees to pay for other government programs is "insidious". 11/30. The USPTO's Trademark Public Advisory Committee released its first annual report [large MS Word file]. It condemned the diversion of user fees, and called for the USPTO to quickly mandate electronic filing of trademark applications. 11/30. Judge Jay Plager of the U.S. Court of Appeals for the Federal Circuit went on senior status. Hence, there is now an opening on the Court. 11/29. The European Patent Organisation adopted an Act Revising the Convention on the Grant of European Patents [PDF] at the conclusion of its Nov. 21 - 29 deliberations in Munich on the revision of the 1973 European Patent Convention. 11/29. Brent Olson was named Deputy Chief of the FCC Common Carrier Bureau's Policy and Program Planning Division. This Division evaluates applications by the RBOCs to provide the long distance service, and merger review proceedings filed by common carriers. See, FCC release (MS Word). 11/29. The U.S. Court of Appeals (FedCir) issued its lengthy en banc opinion in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Ltd., a patent infringement case which addressed the doctrine of equivalents. The Court addressed several questions that remained in the wake of the Supreme Court’s decision in Warner-Jenkinson Co. v. Hilton Davis Chemical Co. 11/29. Stonington Partners Inc., which previously owned 96% of Dictaphone, filed a complaint in Delaware Chancery Court, seeking to have Lernout & Hauspie's acquisition of Dictaphone rescinded. LH filed for Chapter 11 protection on Nov. 29 in U.S. Bankruptcy Court in Delaware. 11/29. Lernout & Hauspie filed a Chapter 11 petition in U.S. Bankruptcy Court (DDel). It makes speech recognition and language translation software products, including Voice Xpress. The filing was made by Lernout & Hauspie Speech Products NV, Dictaphone Corporation, and L&H Holdings USA, Inc. In Belgium, a concordaat reorganization filing will be made by Lernout & Hauspie Speech Products NV. See, LH release. 11/29. The NTIA and the U.S. Copyright Office held a joint hearing on the DMCA and copyright law. The hearing focused on the effects of Title 1 of the Digital Millennium Copyright Act (DMCA) and the development of electronic commerce on the operation of §§ 109 and 117 of Title 17 of the U.S. Code. 11/29. The Recording Industry Association of America (RIAA) filed a petition with the U.S. Copyright Office requesting that it conduct a formal rulemaking proceeding, and if necessary, convene the Copyright Arbitration Royalty Panel, to establish the royalty obligations of companies offering online streaming and downloading of music. See, RIAA release. 11/29. European Patent Organisation (EPO) concluded a nine day meeting on revising the 1973 European Patent Convention. Roland Grossenbacher, Chairman of the Administrative Council of the EPO, stated that "the Conference agreed not to delete computer programs from the list of non-patentable inventions. For the meantime, the existing legal position therefore remains unchanged. The Conference's decision took account of the process of consultation on the future of legal protection in this field, and in no way challenges the existing practice of the Office and its boards of appeal, or that of national patent authorities and courts. As before, computer-implemented inventions can be patented if they involve a new and inventive technical contribution to the state of the art. Technical solutions for use in data processing or for carrying out methods of doing business therefore remain patentable." See, statement of Grossenbacher. 11/29. The Competitive Telecommunications Association (CompTel) announced that it has hired Dittus Communications to lobby against passage of HR 2420. This bill, which is supported by the Regional Bell Operating Companies (RBOCs), would exempt interLATA data traffic from the requirements of Section 271. It is sponsored by half the membership of the House, and will likely be reintroduced in the 107th Congress. See, CompTel release. 11/29. The USTR published a notice in the Federal Register that it seeks public comments on the proposed U.S. Singapore Free Trade Agreement. This notice includes a request for comments on "Relevant trade-related intellectual property rights issues that should be addressed in the negotiations." The deadline for comments is Dec. 19. Fed. Reg., Nov. 29, 2000, Vol. 65, No. 230, Pages 71197 - 71198. 11/29. President Clinton announced that the U.S. and Chile have agreed to start negotiations on a comprehensive bilateral Free Trade Agreement (FTA). He further stated that this "agreement will include labor and environmental provisions". See, Clinton statement. The negotiations over the U.S. Singapore FTA also include these non trade related social issues. President Elect Bush will likely restrict FTA negotiations to trade related issues. 11/29. The U.S. Department of State's U.S. International Telecommunication Advisory Committee's Telecommunication Standardization National Committee's Study Group A held a public meeting. 11/29. Pursuant to the American Inventors Protection Act of 1999, the USPTO will begin publishing patent applications filed on or after November 29, 2000 eighteen months after the effective filing date of the application. See, USPTO release. 11/28. WTO Director General Mike Moore gave a speech in Buenos Aires regarding globalism, regionalism, and electronic commerce. "Is there a risk that regionalism is becoming a stumbling-block, more than a building block, for the new WTO? Draining energy from multilateral negotiations? Fragmenting international trade? And creating a new international disorder characterized by growing rivalries and marginalization and the possibility of hostile blocks?," said Moore. "In this digital world ... the idea of regional preference and integration loses much of its rationale." 11/28. Calif. Gov. Gray Davis announced the appointment of five Superior Court Judges in Santa Clara, Alameda, and Contra Costa Counties. He appointed Joseph Huber and Brian Walsh in Santa Clara County, Steven Brick and Winifred Smith in Alameda County, and George Spanos in Contra Costa County. Joseph Huber is a member of the San Jose law firm of Huber Samuelson. This firm represented Andrew Bunner in connection with his web publication of the DVD DeCSS software utility. Brian Walsh is a shareholder at McTernan, Stender, Walsh, Weingus & Tondreau who practices employment law, including representation labor unions and high-tech executives being separated from their employment. See, law firm bio. Steven Brick is a partner at Orrick, Herrington & Sutcliffe who has litigated unfair competition, securities fraud, RICO, antitrust, intellectual property, and employment disputes. See, Orrick bio. Winifred Smith is a Deputy Assistant Attorney General who has worked on health, education and welfare matters. George Spanos is a partner in the Walnut Creek firm of Spanos & Black. See also, Davis release. 11/28. Staff of the FTC and the Department of Commerce issued a report on the joint FTC/DOC workshop on Alternate Dispute Resolution (ADR) for Online Consumer Transactions held on June 6-7, 2000. The report summarizes several topics, including finding global solutions to problems arising from international e-commerce transactions, pursuing technological innovation in ADR programs, pursuing multiple ADR programs, ensuring fairness and effectiveness of ADR programs, consumer and business education about ADR, and combating fraud and deceptive practices related to ADR. 11/28. The FCC's revised telephone slamming liability rules took effect on Nov. 28. See, FCC release [MS Word]. 11/28. Members of the recording industry formed a royalty program titled SoundExchange. Its purpose is to collect and distribute royalty payments for digital sound recordings played on cable and satellite subscription music services, and streamed in non-interactive webcasts. The SoundExchange Governance Committee will be made up of representatives from both major and independent record labels, recording artists, artist representatives and industry groups, including the Recording Industry Association of America. See, RIAA release. 11/28. The Intellectual Property Organization (IPO) named David Gould of Dupont to be the Chairman of its Trademark Division. 11/28. IBM named Harriet Pearson to be its first Chief Privacy Officer. See, IBM release. 11/27. The American Intellectual Property Association (AIPLA) issued a White Paper [PDF] titled "Patenting Business Methods" that defends current law and USPTO practices. It concluded that "The AIPLA sees no basis or need for discriminating against inventions related to business methods. No major changes in the U.S. patent laws or in USPTO procedures are needed in light of the increasing numbers of patent applications filed on business method inventions ..." However, the AIPLA recommends improvement of USPTO non-patent prior art collections, more training for examiners, an end to the diversion of USPTO fees to pay for other government programs, and early inter partes reexamination of issued patents without estoppel until appealed to the Federal Circuit. It also seeks "clarification that the first inventer defense applies to all methods". The AIPLA White Paper differs with a legislative proposal pending in the Congress. On Oct. 3 Rep. Howard Berman (D-CA) and Rep. Rick Boucher (D-VA) introduced HR 5364, the Business Method Patent Improvement Act. Both were re-elected, and both sit on the House Courts and Intellectual Property Subcommittee. They have stated that they will reintroduce the bill in the 107th Congress. The AIPLA's White Paper also contrasts with the European Commission's Green Paper [PDF] dated Oct. 19, 2000, and titled "The Patentability of Computer-Implemented Inventions." The EC is soliciting comments on this matter. Comments are due by Dec. 15. Send comments by mail or to MARKT-SOFTPAT@cec.eu.int. 11/27. The law firm of Gibson Dunn & Crutcher named 12 new partners, including David Segal and Mark Lyon, who are in the firm's Intellectual Property section. Lyon works in the Palo Alto office on matters involving communications, computer hardware and software, integrated circuit and medical device technologies. Segal is in the Orange County office. See, GDC release. Another member of the firm, Ted Olson, presented oral argument [PDF] on behalf of the petitioner in George Bush v. Palm Beach County Canvassing Board (Supreme Court of the U.S., No. 00-836) on Dec. 1. 11/27. The FCC published in its web site a copy of its Notice of Proposed Rulemaking [MS Word and PDF] regarding preliminary steps which the FCC might take towards allowing secondary markets in spectrum rights. This NPRM was adopted, but not released, at the Nov. 9 FCC meeting. See also, TLJ story of Nov. 10. 11/27. The Supreme Court denied certiorari in Nextwave Personal Communications v. FCC, No. 00-447. See, Order List [PDF] for Nov. 27, at page 16. 11/27. Microsoft filed its appeal brief [188 pages in PDF] with the U.S. Court of Appeals (DCCir) seeking reversal of Judge Jackson's conclusions that Microsoft violated the Sherman Antitrust Act, and ordering the breakup of Microsoft. See also, HTML copy of brief. Microsoft argued that Jackson erred in his application of antitrust law in his conclusions that Microsoft engaged in illegal tying, illegal monopolization in a market for Intel compatible PCs, and illegal attempted monopolization of a browser market. Microsoft further argued that Jackson erred by holding trial five months after filing of the complaint and limiting the number of witnesses, by refusing to conduct a hearing on the subject of remedies, and by making repeated public statements about the merits of the case. See, TLJ story. 11/27. The Association for Competitive Technology (ACT) and Computing Technology Industry Association (CompTIA) filed their joint amicus curiae brief [34 pages in PDF] in support of reversing Judge Jackson's Final Judgment and Order in the Microsoft antitrust case. They wrote that "The extraordinarily dynamic IT industry of the last fifteen years has generated enormous benefits for businesses and consumers. The decision below threatens to choke this dynamism by fragmenting the Windows operating system standard, which now supports a steadily increasing range of software applications, and by reducing the incentive and ability of leading software firms to compete vigorously by adding new functions to existing products." See, TLJ story. 11/27. The National Intellectual Property Law Enforcement Coordination Council (NIPLECC) held a public meeting with trade groups representing intellectual property owners, and others, in the Auditorium of the Department of Commerce. Government officials (who are the members of the panel) stated that they are concerned. Industry witnesses then criticized the government for lack of law enforcement activity. Kevin DiGregory, Co-chair of the NIPLECC, and Deputy Asst. Atty. Gen. in the Criminal Division, walked out of the meeting without listening to any industry comments. 11/27. The Department of Commerce released its estimate of U.S. retail e-commerce sales for the 3rd quarter of 2000. Sales rose from $5.526 Billion to $6.373 Billion (without adjustment for seasonal, holiday, and trading-day differences). This is an increase of 15.3%. The three fastest growing kinds of firms engaging in e-retail were mail order firms, auto dealers and bookstores. See, release. 11/27. The Bureau of Export Administration of the Commerce Dept. published a notice and agenda for the Dec. 12 public meeting of the Regulations and Procedures Technical Advisory Committee. See, Fed. Reg., Nov. 27, Vol. 65, No. 228, page 70693. 11/27. The ICANN posted a request for public comments on its at large membership and election process. 11/27. SEC Chairman Arthur Levitt named David Fielder as Counsel to the Chairman. He succeeds Estee Levine, who was recently named Director of the Office of Congressional and Intergovernmental Affairs. See, release. 11/27. Oracle hired former Clinton press secretary Joe Lockhart. 11/24. Tulip filed a complaint in U.S. District Court (DDel) against Dell alleging infringement of a patent pertaining to motherboard technology. Tulip, a Dutch computer company, is represented by the law firm of Robins, Kaplan, Miller & Ciresi. See, Tulip release. 11/24. The USPTO published a final rule in the Federal Register that amends its rules of practice in patent interferences to simplify certain requirements relating to the declaration of interferences and the presentation of evidence. The change is effective Dec. 26. See, Fed. Reg., Vol. 65, No. 227, pages 70489 - 70490. 11/22. The NTIA created an open electronic mail discussion forum (listserv) on issues pertaining to the identification of radio spectrum for third generation (3G) wireless systems. To subscribe to the mailing list, send an e-mail to 3g-list-request@lists.ntia.doc.gov, leave the subject line blank, and put the following command in the body of the message: "join 3g" (without quotation marks). See also, NTIA release. The NTIA will hold its second government industry meeting on 3G wireless on Dec. 1. This event is intended to provide technical experts an opportunity to review and discuss the Interim Report of the NTIA and the Interim Report of the FCC [68 pages in PDF] released on November 15. See, NTIA's notice and agenda and 3G web page. 11/22. Bill Clinton appointed Zoe Baird, Carly Fiorina, and Thomas Kalil as the U.S. representatives to the Digital Opportunity Taskforce, which was created by Clinton and other G8 leaders at the Okinawa Summit. Its mission pertains to a "global digital divide between developed and developing countries". See, Clinton statement. Baird is President of the Markle Foundation. Fiorina is CEO of HP. Kalil works for Clinton. 11/22. The FCC’s Enforcement Bureau announced three promotions. Lisa Griffin was named Assistant Chief, and Lia Royle and William Davenport were named Special Counsel, of the Market Disputes Resolution Division (MDRD). All three were previously Staff Attorneys in MDRD. Prior to joining the FCC, Griffin was a partner in the law firm of Ross, Dixon & Bell in Washington DC, Royle was a partner in the New York and Washington DC offices of Anderson Kill & Olick, and Davenport was an associate in the Washington DC office of Preston Gates & Ellis. See, release. 11/22. The DOJ and state plaintiffs in the Microsoft antitrust case filed a motion with the U.S. Court of Appeals (DCCir) to file a joint brief of 150 pages. The Court's Oct. 11 Order [PDF] provides for a DOJ brief of 125 pages, and a states' brief of 25 pages, to be filed on Jan. 12. Microsoft's brief is due on Nov. 27. 11/21. The U.S. Attorney’s Office (NDCal) issued a criminal complaint against Peter Morch, of San Francisco, charging theft of trade secrets in violation of 18 U.S.C. 1832. See. DOJ release. Joseph Sullivan and Jonathan Howden, both of Computer Hacking and Intellectual Property Unit of the U.S. Attorney’s Office, are the Asst. U.S. Attorneys prosecuting the case. FBI Special Agent Lisa Gentilcore, of the Palo Alto office, swore the complaint and supporting affidavit. 11/21. Intel and Broadcom announced that they settled all claims against each other brought under Intel's trade secret lawsuit against Broadcom, filed in March 2000, and under Broadcom's trade secret cross-complaint against Intel, filed in June 2000. In March Intel and its subsidiary, Level One Communications, filed a complaint in California Superior Court alleging misappropriation of trade secrets, unfair competition, and tortious interference with existing contractual relations in connection with Broadcom's hiring of three former Intel employees. On Nov. 21 both companies issued substantially identical releases that stated that the terms of the settlement are confidential, and provided little other information. See, Intel release and Broadcom release. Other litigation between the two chip makers continues. Intel filed a complaint against Broadcom in U.S. District Court (DDel) on Aug. 30, 2000 alleging patent infringement. 11/21. The Justice Dept. released a redacted copy of a 121 page study [PDF] regarding the Carnivore Internet surveillance system conducted for the FBI by the Illinois Institute of Technology Research Institute. The report, titled "Independent Technical Review of the Carnivore System Draft Report", concluded: "1. When Carnivore is used correctly under a Title III order, it provides investigators with no more information than is permitted by a given court order. When Carnivore is used under pen trap authorization it collects TO and FROM information, and also indicates the length of messages and the length of individual field within those messages possibly exceeding court-permitted collection. 2. Operating Carnivore introduces no operational or security risks to the ISP network where it is installed. 3. Carnivore reduces, but does not eliminate, risk of both intentional and unintentional unauthorized acquisition of electronic communication information by FBI personnel, but introduces little additional risk of acquisition by persons other than FBI personnel. 4. While operational procedures or practices appear sound, Carnivore does not provide protections, especially audit functions, commensurate with the level of the risks." EPIC, a privacy rights group which has filed a FOIA suit for access to Carnivore records, stated that the review "raises more questions than it answers". See also, FBI's Carnivore web page and statement by Donald Kerr. 11/21. The Los Angeles City Council adopted a resolution pertaining to access to broadband cable Internet access facilities. The resolution was sponsored by Alex Padilla, and adopted unanimously. It does not mandate open access; rather, it is a collection of policy positions regarding open access, and an instruction to the City Attorney to promote them in proceedings before the FCC, FTC and CPUC. A draft copy of the resolution reads, in part: "RESOLVE that the City Attorney is hereby instructed and authorized to represent the City in any rulemaking or other proceedings before the FCC, the Federal Trade Commission, the California Public Utility Commission, or any other proceedings that relate to Internet transmission over cable facilities in a manner that encourages results consistent with this Resolution." See, Los Angeles City Council Agenda for Nov. 21, at Item No 9. 11/21. The U.S. Court of Appeals (DCCir) issued its opinion in U.S. Airwaves v. FCC in which it denied various petitions for review of the FCC's C-block auction rules. 11/21. The U.S. Department of the Treasury published in the Federal Register an 11 page notice regarding amendments to its Privacy Act exemptions. The notice pertains to exemptions for systems of records kept by the IRS, ATF, Customs, and other Treasury Dept. agencies. (Federal Register, Nov. 21, 2000, Vol. 65, No. 225, Pages 69865-69875.) 11/21. The Kansas Corporation Commission filed comments with the FCC recommending that the FCC approve the Oklahoma portion of SBC's Section 271 application to provide long distance service in Kansas and Oklahoma. See, SBC release. 11/21. The Telecommunications Industry Association (TIA) promoted Rali Mileva to Director of Public Relations. See, TIA release. |
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