|News from December
Microsoft Seeks Delay of Government Antitrust Case
12/21. Microsoft filed a Motion to
Amend the Scheduling Order with the U.S. District
Court (DC) in the government antitrust case. Microsoft seeks a four month
delay, citing the non settling states' requests for over broad discovery and
draconian relief. The District Court issued a Scheduling Order [PDF] on
September 28, 2001. (D.C. Nos. 98-1232 and 98-1233 (CKK)).
Microsoft wrote in its motion that "A lot has changed since the Court
entered its Scheduling Order on September 28, 2001. First, Microsoft, the United
States and nine of the plaintiff States have agreed to the Revised Proposed
Final Judgment ("RPFJ"), thus potentially disposing of Civil Action
No. 98-1232 in its entirety and Civil Action No. 1233 in substantial part, if
not entirely as well. Second, the non settling States have initiated over broad
discovery and have proposed draconian "relief" that cannot be
reconciled with plaintiffs' prior representations to the Court in the Joint
Status Report or with this Court's statements at the Scheduling Conference on
September 28, 2001. Over the last month, the non settling States have revealed
that they intend to pursue a program of litigation that is considerably broader
than what plaintiffs collectively proposed in the Joint Status Report and what
this Court envisioned when it entered the Scheduling Order."
Microsoft "requests that the current schedule be extended by at least four
months". It adds that "The fault for any delay instead lies with the
non settling States, which have effectively initiated an entirely new case under
the guise of pursuing a remedy for the specific acts found to be anticompetitive
by the Court of Appeals."
Muris Addresses US Europe Antitrust Differences
12/21. Federal Trade Commission (FTC) Chairman
Timothy Muris gave a speech
[PDF] titled "Merger Enforcement in a World of Multiple Arbiters" at a
Brookings Institute roundtable titled
"Trade and Investment Policy."
The EC made controversial decisions to prohibit mergers of U.S. companies in two
recent transactions: WorldComMCI Sprint and GE Honeywell. Nevertheless, Muris
stated "I do not believe that the EC discriminates against U.S. firms"
and "I do not believe that the EC distorts its competition enforcement
decisions to achieve industrial policy objectives."
FCC to Hold Hearing on Mitnick's Amateur Radio License
12/21. The Federal Communications Commission
(FCC) released a Hearing
Designation Order [PDF] in its new proceeding titled "In the Matter of
Kevin David Mitnick, Licensee of Station N6NHG in the Amateur Radio Service for
Renewal of Station License."
The order states that "we commence a hearing proceeding before an FCC
Administrative Law Judge to determine, ultimately, whether the application of
Kevin David Mitnick for renewal of Amateur Radio Station and General Class
Operator License N6NHG should be granted. As discussed below, Mr. Mitnick is a
convicted felon whose illegal activities have included the interception of
electronic communications, computer fraud, wire fraud, and causing damage to
computers. Based on the information before us, we believe that Mr. Mitnick’s
criminal behavior raises a substantial and material question of fact as to
whether he possesses the requisite character qualifications to be and remain a
Commission licensee. Because we are unable to make a determination that grant of
Mr. Mitnick’s application would serve the public interest, convenience, and
necessity, we hereby designate the application for hearing, as required by
Section 309(e) of the Communications Act of 1934, as amended."
The order does not set the date or place of the hearing. Nor does it name the
Administrative Law Judge who will preside. This is WT Docket No. 01-344.
Federal Circuit Issues Opinion in Patent Case
12/21. The U.S.
Court of Appeals (FedCir) issued its opinion in LNP
Engineering Plastics v. RTP, a patent infringement case involving
plastic products produced with long fiber reinforced thermoplastics. The Appeals
Court affirmed in part, and reversed in part.
LNP filed a complaint in U.S. District
Court (DDel) against Miller Waste Mills
(also know as RTP) alleging infringement of U.S. Patent Nos. 5,019,450
The jury returned a judgment of infringement. The District Court then granted
and denied various motions for judgments as a matter of law (JMOL).
The Court of Appeals affirmed the District Court's grant of JMOL that defendant
infringed claim 1 of the '450 patent and that the '450 patent is not invalid for
indefiniteness. The Appeals Court also affirmed the District Court's denial of
LNP's request for a new willfulness trial and the District Court's determination
that LNP did not commit inequitable conduct during reexamination. The Appeals
Court reversed the District Court's grant of LNP's request for a new trial on
obviousness and the District Court's grant of JMOL that claim 1 of the '889
patent would not have been obvious over prior art.
FCC Requests Comments on EchoStar DirecTV Merger
12/21. The FCC's Cable Services Bureau
released a notice [MS
Word] regarding the applications of Hughes Electronics Corporation and EchoStar
Communications Corporation to the FCC requesting consent to the transfer of
control of licenses and authorizations involved in the EchoStar DirecTV merger.
Petitions and comments are due by February 4, 2002. Oppositions and responses
are due by February 25, 2002. This is CS Docket No. 01-348.
People and Appointments
12/21. Barbara Comstock was named Director of Public Affairs of the Department of Justice (DOJ). She was previously
Director of Research and Strategic Planning at the Republican
National Committee (RNC). She replaces Mindy Tucker, who went to the
RNC. Comstock previously worked for the House
Government Reform Committee from 1995 to 1999, and for Rep. Frank Wolf (R-VA) from 1991 to 1995.
12/21. President Bush announced his intent to nominate Howard Schmidt to
be Vice Chair of the President's Critical
Infrastructure Protection Board. He is currently Chief Security Officer for
Microsoft. See, White
12/21. President Bush announced his intent to nominate Jane Boyle to be U.S. Attorney for the Northern
District of Texas, which includes Dallas. She has been a U.S.
Magistrate Judge for the Northern District of Texas since 1990. See, White
12/21. Alison Ritchie will become CEO of BTopenworld, effective January 1. This is
BT's mass market Internet division. He is currently BT's Restructuring Project
Director. See, BT
Beard retired from the law firm of Gibson
Dunn & Crutcher. He was Chairman of the firm from April 1991 until
December 2001, and was also its Managing Partner from April 1991 until mid 1997.
12/21. Incyte Genomics and Affymetrix, genomic technology companies,
announced a comprehensive settlement of all existing infringement litigation
between the two companies. The first lawsuit involved several of Affymetrix
microarray related patents (U.S. Patent Nos. 5,445,934, 5,744305, 5,800,992,
5,871,928, and 6,040,193). The second lawsuit involved Incyte's RNA
amplification patents (U.S. Patent Nos. 5,716,785 and 5,891,636). The companies
have agreed to cross licenses. See, Affymetrix
release and Incyte
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