News Briefs from August 26-31, 2001

Solicitor General Files Amicus Brief in Festo Case
8/31. The Office of the Solicitor General (OSG) filed its amicus curiae brief with the Supreme Court of the U.S. in Festo v. Shoketsu Kinzoku Kogyo Kabushiki, a patent infringement case. The OSG argued that the Appeals Court judgment should be vacated.
The U.S. Court of Appeals (FedCir) issued its divided en banc opinion on November 29, 2000, narrowing the doctrine of equivalents, which prevents an accused infringer from avoiding liability for infringement by changing only minor or insubstantial details of a claimed invention while retaining the invention's essential identity. The Appeals Court sought to answer several questions that remained following the Supreme Court's decision in Warner - Jenkinson v. Hilton Davis Chemical, 520 U.S. 17 (1997). The Supreme Court granted certiorari in the Festo case on June 18.
The OSG wrote in the amicus brief that the "doctrine of equivalents provides that a product or process that does not literally infringe upon the express terms of a patent claim may nevertheless be found to infringe if there is an "equivalence" between the elements of the accused product or process and the claimed elements of the patented invention. ... That doctrine is limited by the concept of prosecution history estoppel, which recognizes that, if a patent claim is amended during patent prosecution, the amendment may curtail application of the doctrine of equivalents to the amended claim."
The OSG stated that the questions presented are "Whether an amendment of a patent claim that narrows the scope of the claim for any reason related to the statutory requirements for a patent gives rise to prosecution history estoppel with respect to the amended portion of the claim" and "Whether an amendment of a patent claim that gives rise to prosecution history estoppel completely precludes invocation of the doctrine of equivalents for the amended portion of the claim."
The OSG argued that Federal Circuit "correctly ruled that an amendment of a patent claim that narrows the scope of the claim for reasons of patentability gives rise to prosecution history estoppel with respect to the amended portion of that claim." However, it continued that the Court "erred in ruling that a patent claim amendment that gives rise to prosecution history estoppel completely bars invocation of the doctrine of equivalents for the amended portion of the claim." Hence, it argued that the judgment of the Court of Appeals should be vacated.
DOJ Argues Supreme Court Should Deny Certiorari in Microsoft Case
8/31. The Department of Justice (DOJ) filed with the Supreme Court of the United States its brief in opposition to Microsoft's petition for writ of certiorari. Microsoft's petition raises the sole issue of whether Judge Jackson's improper out of Court contacts warrant vacating Judge Jackson's finding of fact and conclusions of law in their entirety.
The DOJ argues in its brief that Microsoft's petition should be denied for three reasons. First, it argues that this is an interlocutory appeal in a case that could later generate another petition for writ of certiorari; the Supreme Court should not take interlocutory appeals.
Second, the DOJ argues that "Microsoft's assertion that the court of appeals' decision conflicts with decisions of this Court and other courts of appeals rests squarely on a mischaracterization of the court of appeals' ruling, which simply applies the controlling authority, Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), to the facts of this case."
Third, the DOJ argues that "the court of appeals' unanimous en banc decision properly applied Liljeberg, which specifically recognizes that courts of appeals have considerable discretion in resolving the factbound question of the proper remedy for specific instances of judicial misconduct."
Federal Reserve and Technology
8/31. Federal Reserve Board Vice Chairman Roger Ferguson gave a speech at a conference sponsored by the Federal Reserve Bank of Kansas City, in Jackson Hole, Wyoming. The speech was titled "Technology, Information Production, and Market Efficiency." The conference was titled "Economic Policy for the Information Economy." See also, agenda, with links to some of the presentations.
Ferguson reviewed a paper on the effects of information technology on markets, which he summarized as follows: "Improvements in information technology -- most notably, the rapid growth of the Internet -- have made participating in the market much easier and cheaper and, as a result, the market has drawn in many new and unsophisticated investors. These "noise traders" cannot differentiate between accurate and distorted information about a given company. Thus, company managers see greater opportunity to boost their firm's stock price by fooling investors through the release of distorted information -- and have a strong incentive to do so because of the shift toward stock-based compensation and the widespread use of equity financing in the "new economy." In the end, according to the paper, more information is available, but its quality has deteriorated, which reduces the benefit from information technology for market efficiency." See, paper [PDF] titled "Technology, Information Production, and Market Efficiency," by Gene D’Avolio, Efi Gildor, and Andrei Shleifer.
Ferguson challenged the argument that "information technology has greatly expanded the presence of uninformed investors in the equity market." He stated that "households have been reducing the portion of their equities that they hold directly and have increasingly invested through mutual funds and variable annuities ... That is, households have been handing over more and more of their equity portfolio to professional managers, who tend to be relatively well informed investors."
He argued that instead, "The late 1990s were a period of optimism about the prospects for the U.S. economy, reflecting the pickup in productivity growth that was generated, in large part, by information technology. The resultant optimism about the economy's growth prospects was accompanied by a complacent attitude toward risk ..."
On a related topic, he stated that new information technologies have benefited consumers. He stated that "new technologies have surely led to a general increase in welfare. New delivery technologies, such as the Internet, when combined with automated underwriting and credit scoring, have given borrowers the opportunity to select from a broader set of providers of credit cards, mortgages, and even some types of small business loans ..." He also praised "web sites to allow Internet banking and software to permit PC banking."
However, he also cautioned that "the implications of these newer delivery channels for banking products other than mortgages and credit cards seem more potential than real for the vast majority of bank retail customers." He cited the statistic that "Only 6 percent of households reported having used a computer to conduct business with a financial institution in 1998."
FCC Updates Licensing Records to Reflect Court Mandate In Nextwave Case
8/31. The FCC announced that its "Wireless Telecommunications Bureau will update its licensing records to reflect the court's mandate" in NextWave v. FCC. The FCC added that "The United States and the Commission have indicated their intention to ask the Supreme Court of the United States to review the D.C. Circuit decision. In addition, related litigation is pending in the Bankruptcy Court for the Southern District of New York, Case No. 98 B 21529 (ASH); and there are potential or ongoing related regulatory proceedings before the Commission. These litigation and/or regulatory matters may affect the status of the involved licenses." See, FCC release.
NextWave Communications obtained spectrum licenses at FCC auctions in 1996. The FCC permitted NextWave to obtain the licenses under an installment plan, thus creating a debtor creditor relationship between NextWave and the FCC. NextWave did not make payments required by the plan, and filed a Chapter 11 bankruptcy petition. The FCC was blocked by the bankruptcy court, citing § 525 of the Bankruptcy Code. The U.S. District Court (SNDY) affirmed. The U.S. Court of Appeals (2ndCir) issued its order reversing and remanding the case on Nov. 24, 1999; it issued its opinion explaining its reversal in May 2000. The FCC then re-auctioned this spectrum to Verizon Wireless, VoiceStream and other successful bidders, which intend to use it for 3G wireless, and other, services.
However, NextWave petitioned the FCC to reconsider its cancellation of its licenses. The FCC refused, and NextWave petitioned for review by the Court of Appeals in the District of Columbia. The DC Circuit ruled on June 22 that the 2nd Circuit had not already addressed NextWave's bankruptcy claims. It also wrote in its opinion that the FCC is prevented from canceling the spectrum licenses by § 525 of the Bankruptcy Code. It wrote that the FCC "violated the provision of the Bankruptcy Code that prohibits governmental entities from revoking debtors' licenses solely for failure to pay debts dischargeable in bankruptcy. The Commission, having chosen to create standard debt obligations as part of its licensing scheme, is bound by the usual rules governing the treatment of such obligations in bankruptcy." See, NextWave Personal Communications Inc. v. FCC, 254 F.3d 130 (D.C. Cir. 2001).
Indictment Returned for Violation of Export Rules
8/31. A grand jury of the U.S. District Court (NDCal) returned an indictment [PDF] of Berkeley Nucleonics Corporation (BNC) and three of its employees, David Brown, Richard Hamilton, and Vincent Delfino, alleging violation of 18 U.S.C. § 371 and the Export Administration Regulations regarding exports to India in violation of 50 U.S.C. § 1705(b).
The indictment alleges that BNC and its employees solicited business for and knowingly exported nuclear pulse generators and related parts to various entities in India without the export license required by the Bureau of Export Administration of the Department of Commerce. Jeff Cole and Candace Kelly are the Assistant U.S. Attorneys who are prosecuting the case.
Bush Addresses Deployment of Broadband Internet Access
8/31. President Bush stated at a press conference that broadband deployment is resulting from market activity, and that broadband access in rural areas will come from "over the air" rather than wireline service.
President and Mrs. Bush held a press conference to announce revisions to the White House web site at which President Bush was asked, "what role should the federal government play in helping deploy high speed Internet access?" He responded, "Well, a lot of that is going to be taking place through the market. And technology is such that areas that might not get access quickly as a result of no economies of purchase, or economies of scale, will be able to have Internet access. I think, for example, of Crawford, Texas. It's a place where you're not going to generally get a lot of fiber-optics, although I think there may be some there as a result of Laura's and my presence. Hopefully that high speed access will come as a result of -- over the air, as opposed to through fiber-optics. And once we get over the air high speed access, then a lot of rural America that heretofore hasn't had access will get it. The technologies are evolving. One of my concerns, of course, is the economic slowdown will perhaps slow down some of the progress made, as far as high speed access. And we've done something about it. I'm going to remind Congress that they need not overspend, and should not overspend. It's going to affect economic growth; that all of us in Washington need to be thinking about how to grow the economy. ..." See, transcript.
People and Appointments
8/31. Scott Marcus was named Senior Advisor for Internet Technology at the FCC. He was previously CTO of Genuity. The FCC stated in a release [PDF] that his "research interests include the economics and public policy implications of internet backbone interconnection, the measurement and prediction of Internet usage, the management and operation of data networks, and general data network design." He is also the author of Designing Wide Area Networks and Internetworks: A Practical Guide (Amazon sales rank: 60,573). See also, Genuity bio.
8/31. President Bush announced his intent to nominate Rockwell Schnabel to be Representative of the U.S. to the European Union. He is currently Co-Chairman of Trident Capital, a private equity venture capital firm that focuses on information services companies. It is based in Los Angeles, California. See, White House release.
Xerox and CSU Settle
8/31. Xerox announced that it has reached a settlement of its remaining claims against Copier Services Unlimited. See, Xerox release.
Copyright Office Releases DMCA Report
8/30. The Copyright Office (CO) released its report on the effects of Title 1 of the Digital Millennium Copyright Act (DMCA) and the development of electronic commerce and associated technology on the operation of §§ 109 and 117 of Title 17. The report also evaluates the relationship between existing and emerging technology and the operation of those sections. The report was required by § 104 of the DMCA.
Franchising for Profit
8/30. The U.S. Court of Appeals (5thCir) issued its opinion in USA v. Williams, affirming a conviction of a city councilman, who as a member of a local franchising authority, sought a cash bribe for voting for a renewal of a cable TV franchise.
The Defendant, Robert Williams, was a City Councilman for the City of Jackson, Mississippi. Time Warner sought a renewal of its cable TV franchise. Williams sought $150,000 in cash from Time Warner for his vote. He was convicted of conspiracy to commit extortion and solicitation of bribery payments. The Court of Appeals affirmed.
CDT Releases Privacy Report
8/30. The Center for Democracy and Technology (CDT) released a report [7 MB in PDF] regarding the privacy practices of online financial services providers. The CDT report states that out of 100 banks studied that offer their customers the ability to open accounts online and use other banking services online, only 22% provide their customers equally convenient online means of preventing information sharing with other companies.
The CDT also submitted a complaint to the Federal Trade Commission (FTC) in which it stated that five mortgage companies (Advantage Mortgage, Ameriwest Mortgage, Central New England Mortgage, GM Mortgage, and Online Mortgage Corporation) are in violation of FTC regulations promulgated pursuant to the Gramm Leach Bliley Act. The complaint states that these companies collect personally identifiable financial information on their web sites in connection with granting mortgages to consumers, but do also offer clear and conspicuous notice of their privacy policies. The complaint also requests that the FTC initiate an investigation of the privacy practices of the five companies.
EU Initiates Proceeding Against Microsoft
8/30. The European Commission announced that Microsoft "may have violated European antitrust rules by using illegal practices to extend its dominant position in the market for personal computer operating systems into the market for low-end server operating systems. Low-end server systems are cheaper servers usually used as file and print servers as well as Web servers. In a Statement of Objections, the Commission also alleges that Microsoft is illegally tying its Media Player product with its dominant Windows operating system. This Statement of Objections supplements one sent to the company a year ago and adds a new dimension to the Commission's concerns that Microsoft's actions may harm innovation and restrict choice for consumers. A Statement of Objections is a formal step in European antitrust proceedings, which does not prejudge the final outcome." See, EU release.
Microsoft issued a release in which it asserted that the EU's latest action is "a constructive step in the ongoing dialogue on these issues." Microsoft also stated that it "confirmed today in discussions with European Commission staff that the Commission has no plans to seek to block the launch of Windows XP or any other Microsoft product in Europe."
Jean Philippe Courtois, President of Microsoft EMEA, stated in the same release that "We are confident that once it has completed its investigation, the European Commission will be assured that we run our business in full compliance with EU law".
Ken Wasch, President of the SIIA, an anti Microsoft group based in Washington DC, stated that "The filing of this case confirms that Microsoft's anti- competitive practices are not confined to the desktop. Rather than replaying the debate about the desktop, applications and the browser, the Commission has appropriately focused on the new challenges resulting from Microsoft's leveraging its monopoly on the PC." See, SIIA release.
Copyright Infringement
8/30. The U.S. Court of Appeals (6thCir) issued its opinion in Murray Hill Publications v. ABC, a case involving claims of copyright infringement, violation of the Lanham Act, and other claims. The Appeals Court affirmed the District Court's grant of summary judgment to defendant, ABC (dba WJR Radio).
8/30. The USPTO published a notice in the Federal Register that it is temporarily amending its rules regarding the timing of national stage commencement in the U.S. for Patent Cooperation Treaty (PCT) applications. It is amending its regulations to include the current statutory provisions that define when national stage commencement occurs in an application filed under the PCT. See, Federal Register, August 30, 2001, Vol. 66, No. 169, at Pages 45775 - 45777.
8/30. The USPTO published a notice in the Federal Register regarding its notice of proposed rulemaking (NPRM) proposing to amend its rules to make electronic filing of trademark documents mandatory, subject to certain exceptions. Comments must be received by October 29, 2001. A public hearing will be held at 10:00 AM on October 12, 2001, in Room 911, Crystal Park 2, 2121 Crystal Drive, Arlington, Virginia. Requests to present oral testimony are due by October 5, 2001. See, Federal Register, August 30, 2001, Vol. 66, No. 169, at Pages 45792 - 45797.
Sklyarov and Elcomsoft Indicted
8/28. A grand jury of the U.S. District Court (NDCal) returned a five count indictment [PDF] against Elcom Ltd. aka Elcomsoft Co. Ltd. and Dmitry Sklyarov for criminal violations of copyright law in connection with their marketing and sale of a program that circumvents Adobe's e-book reader. Elcomsoft and Sklyarov are charged with violation of the anti circumvention section of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201.
Adobe Systems makes the eBook Reader, a program which can read books in an electronic format named eBook. The program is downloadable at Adobe's web site. Users can then purchase encrypted electronic books in eBook format from online bookstores, such as, and read them with the eBook Reader. The books are encrypted to protect copyright interests. Elcomsoft and Sklyarov produced software that enables people to copy and read these electronic books without paying.
The indictment states that Elcomsoft, a software company based in Moscow, Russia, and Sklyarov, an employee of Elcom, designed, produced, and marketed a program named the Advanced eBook Processor (AEBPR). This program circumvents the Adobe Acrobat eBook Reader by removing all limitations on an ebook purchaser's ability to copy, distribute, and print ebooks.
Count One alleges conspiracy to traffic in technology primarily designed to circumvent and marketed for use in circumventing, technology that protects a right of a copyright owner in violation of 18 U.S.C. § 371. Counts Two and Three both allege trafficking in technology primarily designed to circumvent technology that protects a right of a copyright owner in violation of 17 U.S.C. § 1201(b)(1)(A) and 18 U.S.C. § 2. Count Four and Five both allege trafficking in technology marketed for use in circumventing technology that protects a right of a copyright owner in violation of 17 U.S.C. § 1201(b)(1(C) and 18 U.S.C. § 2.
Sklyarov was previously charged by criminal complaint [PDF] with a single count of trafficking in a product designed to circumvent copyright protection measures, on July 17.
Both defendants are scheduled to be arraigned at 9:30 AM on August 30, 2001 before Judge Seeborg.
This is case number CR-01-20138. Assistant U.S. Attorneys Scott Frewing and Joseph Sullivan are prosecuting the case. See also, USAO release.
Copyright Office Seeks Comments on NPRM on Compulsory Licensing
8/28. The Copyright Office (CO) published a notice in the Federal Register seeking public comments on proposed amendments to the regulations governing the content and service of certain notices on the copyright owner of a musical work. The notice is served or filed by a person who intends to use the work to make and distribute phonorecords, including by means of digital phonorecord deliveries, under a compulsory license, pursuant to 17 U.S.C. § 115. Comments are due by September 27, 2001. See, Federal Register, August 28, 2001, Vol. 66, No. 167, Page 45241 - 45245.
10th Circuit Rules in Stock Options Case
8/28. The U.S. Court of Appeals (10thCir) issued its opinion in Mauldin v. WorldCom, a dispute over stock option agreements. Mauldin entered into four stock option agreements with MFS Intelenet, which was subsequently acquired by WorldCom. Mauldin sought to exercise these options. WorldCom refused. Mauldin filed a complaint in U.S. District Court (NDOkla) against WorldCom. The District Court granted summary judgment to WorldCom. Mauldin brought the appeal. The Court of Appeals reversed.
More News
8/28. The NTIA is advertising to fill the position of Associate Administrator for Telecommunication Sciences and Director of the Institute for Telecommunication Sciences in Boulder, Colorado. The position pays $122,083 to $133,700 per year. See, job announcement.
5th Circuit Upholds Protectionist Car Dealership Law
8/27. The U.S. Court of Appeals (5thCir) issued its opinion in Ford Motor Company v. Texas, upholding the constitutionality of a protectionist Texas statute backed by car dealerships that prevents the car makers from selling cars over the Internet. The Court rejected a Commerce Clause challenge to the statute by 3 to 0. However, Judge Edith Jones condemned the existing precedent, argued that the statute harms consumers, and invited the Supreme Court to review the case.
Background. Electronic commerce provides the potential for producers of goods or services to reduce or remove the role of dealers, brokers and other middlemen. It can enable producers to interact directly with customers, thereby enabling consumers to realize significant savings. In some situations, middlemen who risk losing some or all of their role have resorted to seeking legislative or regulatory protection. In the present case, auto dealers threatened by competition from Internet sales have lobbied for, and obtained, legislative protection. In Texas, for example, one statutory section prohibits the selling cars without a dealer's license, while its companion section prohibits car makers from obtaining dealer's licenses.
Facts. Ford marketed pre-owned vehicles in Texas via a web site. On November 2, 1999, the Texas Motor Vehicle Division filed an administrative complaint against Ford with the Texas Motor Vehicle Board for selling cars without a dealer's license.
District Court. Ford filed a complaint in U.S District Court (WDTex) against the state of Texas alleging that Texas' dealership statute violates Ford's rights under the U.S. Constitution, including the dormant Commerce Clause, the speech clause of the First Amendment, and the Equal Protection and Due Process clauses of the 14th Amendment. Ford also asserted that the statute is unconstitutionally vague. Both parties filed motions for summary judgment. The District Court granted Texas's motion for summary judgment as to all of Ford's claims.
Dormant Commerce Clause. The Commerce Clause, at Art. I, Section 8, provides that "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States ..." The "dormant Commerce Clause" is the judicial concept that the Commerce Clause also blocks states from regulating in a way that materially burdens or discriminates against interstate commerce. The Appeals Court held that the Texas statute does not discriminate against interstate commerce. It relied heavily on a case growing out of the 1973 oil embargo and resulting shortage -- Exxon v. Maryland, 437 U.S. 117 (1978). During the 1973 shortage gas stations owned by producers and refiners received preferential treatment. Afterwards, Maryland passed a law prohibiting producers and refiners from operating gas stations in Maryland. The Supreme Court found this to be a bar on vertical integration that did not burden interstate commerce. It rejected a Commerce Clause challenge.
In the Ford case, the Appeals Court reasoned that Exxon is controlling. It elaborated that the dormant Commerce Clause only bars state discrimination against out of state businesses. Discrimination against a class of businesses that is defined by some characteristic other than its state is not violative of the dormant Commerce Clause. The Court wrote that the Texas statute "does not discriminate based on Ford's contacts with the State, but rather on the basis of Ford's status as an automobile manufacturer." Moreover, it "does not protect dealers from out-of-state competition, it protects dealers from competition from manufacturers."
District Court Affirmed. The Appeals Court also rejected Ford's argument that the Texas statute limits speech -- i.e., the content of its web site. Similarly, it rejected the remaining claims. The District Court was affirmed in full. The opinion was written by Judge Benavides. Judges DeMoss and Jones joined.
Edith Jones Invites Supreme Court Review. Jones wrote a "concurring" opinion which reads more like a dissent. She wrote that she concurred only because Exxon v. Maryland "compelled" that result. She continued that "Exxon seems woefully out of step with the Court's more recent cases." She also wrote that "Texas's outright prohibition on retail competition from out-of-state auto manufacturers is about as negative toward interstate commerce as legislative action can get. If, as the Court says, its negative commerce clause jurisprudence intends to prevent "economic protectionism" of local businesses, ... , and to stop states from imposing higher (in this case prohibitive) costs on products from out-of-state sources, ... , then Ford's dealer-cooperative, consumer-friendly program ought not be stymied by parochial state legislation. It should be obvious that the flow of interstate goods is diminished when barriers to entry totally prevent fair competition by a class of potential distributors: the favored local distributors' price and service incentives become less keenly competitive, prices rise, and overall sales will decline from the free-market equilibrium point. Since this Texas statute appears to reflect a genre of state laws favoring local automobile dealers over out-of-state manufacturers, perhaps the Supreme Court will give us further guidance."
The elder President Bush had once seriously considered Judge Jones, now 52, for a seat on the Supreme Court. Former President Reagan appointed her to the Appeals Court at the age of 36. She is a graduate of the University of Texas.
3rd Circuit Reverses Gag Order in Key Logger System Case
8/27. The U.S. Court of Appeals (3rdCir) issued its opinion in USA v. Scarfo, regarding "a lawyer's right to make extrajudicial statements to the press relating to a former client's pending criminal case." This opinion is noteworthy because the underlying case, which involves government search and seizure of information from personal computers, has attracted wide attention from technology writers and legal scholars, their readers, and practitioners.
Background. Nicodemo Scarfo is an encryption savvy mobster who is charged with various illegal gambling acts. The FBI obtained Scarfo's encryption passphrase by surreptitiously installing on his personal computer the FBI's "Key Logger System", which records keystroke entries. Most recently, the FBI has invoked the Classified Information Procedures Act, Title 18, U.S.C, Appendix III, to avoid producing information about the "Key Logger System" to a Scarfo. He seeks discovery regarding the FBI's "Key Logger System" to support his motion to suppress evidence gathered as a result of use of the system. His first attorney in this case, Donald Manno, was disqualified by the District Court. Manno subsequently talked to the Philadelphia Enquirer about legal and privacy issues raised by the FBI's "Key Logger System."
Gag Order. The Court then ordered that: "no lawyer representing or who has represented a party in this criminal matter could make any extrajudicial statement to the press regarding legal issues which may be raised concerning electronic or computer surveillance techniques, which a reasonable person would expect to be disseminated by means of public communication, which he knows or reasonably should know will have a substantial likelihood of causing material prejudice to the determination of the anticipated or filed pre-trial motion, or the conducting of a fair trial in the case."
Appeals Court. The Appeals Court reversed the gag order. It wrote that the attorney's "comments on an interesting legal issue did not pose a threat to the fairness of the trial or to the jury pool. Nor did the District Court identify a risk of a carnival-type atmosphere in the case, although organized crime cases often draw massive public interest. ... There having been no identifiable prejudice or risk of prejudice, the gag order was erroneous."
James Bond 007: Doctrine of Laches Bars Claims of Infringement
8/27. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Danjaq v. Sony, a case applying the equitable doctrine of laches to ancient claims of infringement of intellectual property rights in the name James Bond. The Appeals Court affirmed the District Court ruling that the doctrine of laches bars the plaintiffs' forty year old claims.
This is a long but fascinating opinion that recounts the history and content of the James Bond books and screenplays, and the law of the doctrine of laches in the context of intellectual property claims.
Standard Files Chapter 11 Bankruptcy Petition
8/27. Standard Media International, the parent company of the Industry Standard and, filed a Chapter 11 petition in U.S. Bankruptcy Court (NDCal).
Standard Media also stated that "The court will now oversee the sale of Standard Media's assets, which include the magazine's subscriber list ..." See, release. The company's online privacy policy states that "The Industry Standard will not release your personal data to anyone else without your consent."
Tristani to Leave FCC
8/27. FCC Commissioner Gloria Tristani announced that she will leave the FCC, effective September 7, 2001. See, FCC release. Tristani is a Democrat from New Mexico who was appointed in 1997 by former President Clinton. She will return to New Mexico, where she will likely run for public office. She has spoken in the past about challenging Rep. Heather Wilson (R-NM), who sits on the House Commerce Committee and its Telecom Subcommittee. More recently, she has spoken about running against Sen. Pete Domenici (R-NM).
Tristani was generally supportive of former Chairman William Kennard. She distinguished herself from other Commissioners by promoting the V-Chip, and constantly scolding radio and TV broadcasters for indecency, violence and lack of diversity in their programming. She also outraged religious broadcasters by seeking to limit their eligibility for educational licenses. She also was the most consistent opponent of media consolidation.
Tristani was also a supporter of the e-rate subsidy program, universal service generally, and programs to increase the used of telecommunications services in Indian country specifically.
There are currently three Republicans (Powell, Martin, and Abernathy) and two Democrats (Copps and Tristani) on the FCC. Tristani's departure will not upset the Republican majority. By law, President Bush must nominate a Democrat, who must be confirmed by the Senate.
FCC Commissioner Gloria Tristani gave a speech in Albuquerque, New Mexico, on August 24. She complained about obscenity on broadcast radio, the lack of Hispanic characters on broadcast TV, and the "digital divide" in Internet access.
Spread Spectrum Devices
8/27. August 27 was the deadline to submit comments to the FCC in its further notice of proposed rule (FNPRM) making of May 10 regarding spread spectrum devices. See, Further Notice of Proposed Rule Making and Order, adopted by the FCC on May 10, 2001, and released on May 11, 2001. This is the proceeding titled "In the Matter of Amendment of Part 15 of the Commission's Rules Regarding Spread Spectrum Devices" and numbered ET Docket No. 99-231.
This FNPRM proposes to amend Part 15 of the FCC's rules to improve spectrum sharing by unlicensed devices operating in the 2.4 GHz band (2400 - 2483.5 MHz), provide for introduction of new digital transmission technologies, and eliminate unnecessary regulations for spread spectrum systems. Specifically, this FNPRM proposes to revise the rules for frequency hopping spread spectrum systems operating in the 2.4 GHz band to reduce the amount of spectrum that must be used with certain types of operation, and to allow new digital transmission technologies to operate pursuant to the same rules as spread spectrum systems. It also proposes to eliminate the processing gain requirement for direct sequence spread spectrum systems, which will provide manufacturers with increased flexibility and regulatory certainty in the design of their products.
The FCC published comments in its web site. See, for example, comment [PDF] submitted by Apple Computer, comment [PDF] submitted by Intel, comment [PDF] submitted by Texas Instruments, and comment [PDF] submitted by IEEE 802.
SEC Files Securities Fraud Complaint
8/27. The SEC filed a civil complaint in U.S. District Court (DOre) against Alpha Telecom and others alleging violation of federal securities laws in connection with a fraudulent offering of securities that raised about $100 Million. The District Court issued a temporary restraining order halting operations by defendants.
The defendants are Alpha Telecom Inc., American Telecommunications Company Inc., Strategic Partnership Alliance LLC, SP Marketing LLC, Paul Rubera, Robert McDonald, Ross Rambach, and Mark Kennison. The SEC stated that defendants raised at least $100 Million from over 7,000 investors for purported investments in pay telephones, which are actually a Ponzi scheme. The District Court (1) granted the SEC's motion for a TRO (2) ordered appointment of a receiver, (3) froze assets, (4) prohibited destruction of documents, (5) ordered an accounting, and (6) granted expedited discovery. See, SEC release. This is case number CV-01-1283 HA.
More News
8/27. The USPTO published in notice in the Federal Register requesting comments on issues associated with the development of a plan to remove the patent and trademark classified paper files from the USPTO's public search libraries. Comments are due by September 26, 2001. See, Federal Register, August 27, 2001, Vol. 66, No. 166, at Pages 45012 - 45014.
8/27. Arif Hyder Ali joined the Houston office of the law firm of Fulbright & Jaworski as counsel. He previously was senior counsel at the Word Intellectual Property Organization's (WIPO) Arbitration and Mediation Center. He will focus on international commercial arbitration, alternative dispute resolution, representations before inter-governmental tribunals and organizations and dispute resolution involving information and communications technologies and the Digital Economy. See, F&J release.
8/27. A jury of the U.S. District Court (CDCal) convicted Craig Smith of obstructing an investigation by the SEC into alleged insider trading of stock in Ancor Communications. See, SEC release.

Go to News Briefs for August 21-25, 2001.