TLJ News from December 21-25, 2005

NIST Seeks Applications for EE and IT Lab Grants

12/23. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register that announces, describes, and sets the deadlines for applications in, various of its FY2006 small grants programs. The notice lists nine grant programs, including the "Electronics and Electrical Engineering Laboratory Grants Program" (EEELGP) and "Information Technology Laboratory Grants Program" (ITLGP).

EEELGP grants cover "development of fundamental electrical metrology and of metrology supporting industry and government agencies in the broad areas of semiconductors, electronic instrumentation, radio-frequency technology, optoelectronics, magnetics, video, electronic commerce as applied to electronic products and devices, the transmission and distribution of electrical power, national electrical standards (fundamental, generally quantum-based physical standards), and law enforcement standards."

EEELGP grant applications are due by 5:00 PM EST on June 30, 2006.

ITLGP grants cover "the broad areas of mathematical and computational sciences, advanced network technologies, and information access. Specific objectives of interest in these areas of research include: Quantum information theory, computational materials science, computational nanotechnology, mathematical knowledge management, visual data analysis, verification and validation of computer models, software testing, human-robot interaction, human factors in voting systems, security for the IPv6 transition from and coexistence with IPv6, and device mobility among heterogeneous networks."

ITLGP grant applications are due by 5:00 PM EST on September 30, 2006. However, the NIST adds that "Proposals received between July 1, 2006 and September 30, 2006 will be processed and considered for funding under this solicitation, but if selected, proposals may be funded in the next fiscal year, subject to the availability of funds."

See, Federal Register: December 23, 2005, Vol. 70, No. 246, at Pages 76241 - 76252.

People and Appointments

12/23. The Federal Bureau of Investigation (FBI) announced in a release that it wants to hire a "large number of Information Technology (IT) Professionals".

House and Senate Approve Five Week Extension of Sunsetted Sections of PATRIOT Act

12/22. The House and Senate approved a bill to extend the date upon which 16 sections of the USA PATRIOT Act sunset, from December 31, 2005, to February 3, 2006. The bill is S 2167, a short untitled bill that merely extends the sunset date.

Late on December 21, the Senate approved a version of the bill with a six month extension -- until July 1, 2006. However, Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee and the floor manager of the huge conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", refused to support the six month extension.

When the House met at 4:00 PM, he offered an amendment that substituted the date "February 3, 2006" for "July 1, 2006". The House approved the amendment, and then the bill as amended, without roll call votes. (Few members of the House or Senate are still in Washington DC.)

Thursday night the Senate approved the bill with the five week extension, by unanimous consent. Sen. John Warner (R-VA) was present to conduct the formality.

Many of the Senate opponents of the conference report have argued that they need more time to debate the bill. However, the five week extension approved by the Congress will allow little opportunity for debate. First, the extension is only five weeks.

Second, most members of the House and Senate are already away from Washington for the Christmas and New Year's break. The Senate will not formally convene for the 2nd Session of the 109th Congress until January 18, 2006. See, 2006 Senate calendar. The House will not formally convene for the 2nd Session until Tuesday, January 31, 2006. See, Majority Whip's calendar.

Third, the Senate committee that would hold any hearings would be the Senate Judiciary Committee (SJC). Yet, it is committed to holding hearings on the nomination of Judge Sam Alito to be Justice of the Supreme Court beginning on Monday, January 9. Moreover, three of the leading opponents of the conference report are members of the SJC, Sen. Patrick Leahy (D-VT), Sen. Russ Feingold (D-WI), and Sen. Dick Durbin (D-IL).

Moreover, Sen. Arlen Specter (R-PA), the Chairman of the SJC, previously stated that the SJC would take up the asbestos bill after the Alito nomination. See, story titled "Sen. Specter Outlines Schedule for Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,269, December 9, 2005.

If Senate Democrats were to use time during the Alito hearings to criticize the PATRIOT Act, it would be at the cost time spent criticizing Alito.

Rep. James SensenbrennerRep. Sensenbrenner (at right) stated in a release on December 22 that "Eight days ago, a bipartisan majority of the House, including 44 Democrats, voted for the PATRIOT Act conference report. Last night, the Senate ignored the will of the bipartisan majority of the House, a majority of the PATRIOT Act House-Senate conferees, and a clear majority of Senators by failing to consider the PATRIOT Act conference report. Instead, the Senate chose to punt the issue to next year by passing a six-month extension of the PATRIOT Act that contains none of the important civil liberties safeguards carefully negotiated by House and Senate conferees and included in the PATRIOT Act conference report."

"A key reason given for agreeing to last night's Senate deal was that Senators needed more time to fully debate the conference report. Today, the House addressed this concern by passing an extension of the PATRIOT Act until February 3, 2006. I'm pleased today's House passage and the Senate's expected passage later today of this five-week extension will give the Senate enough time to fully debate and consider the conference report."

"I will take Democratic Senators at their word that they do not want the PATRIOT Act to expire, Senator Reid's boast of 'killing the PATRIOT Act,' notwithstanding. I also hope Democratic Senators will evaluate this vital national security issue on its merits, and not view it as a Washington power struggle, as evidenced by Senator Feingold's comment yesterday, 'They lost the game of chicken.' The security of the American people must not be held hostage to the partisan brinksmanship of a minority of obstructionist Senators. It is imperative that the House-passed PATRIOT Act conference report be considered and passed by the Senate in a timely manner to ensure that our Nation's law enforcement and intelligence communities are provided the tools necessary to detect and defeat terrorist threats."

Bush stated in a release early on December 22 that "I appreciate the strong commitment by the majority of the House and of the Senate to re-authorize the Patriot Act. The terrorists are determined to strike America again and inflict even greater damage than they did on September 11, 2001. The Patriot Act is essential to protecting the American people against the terrorists. The Act tore down the wall between law enforcement and intelligence officials so that they can share information and work together to help prevent attacks. The Senate Democratic leader boasted last week that the Senate Democrats had "killed the Patriot Act." Our Nation's security must be above partisan politics. The Patriot Act has helped us disrupt terrorist plots and break up cells here in the United States. I will work closely with the House and Senate to make sure that we are not without this crucial law for even a day.

Bush stated in a speech on the South Lawn of the White House at 2:25 PM, before the House approval of its version of the bill, that "It appears to me that the Congress understands we've got to keep the Patriot Act in place, that we're still under threat, there's still an enemy that wants to harm us and they understand the Patriot Act is an important tool for those of us here in the executive branch to use to protect our fellow citizens. The Senate extended the Patriot Act by six months."

Sen. Leahy stated in a release, after Congressional approval of the February 3 extension, that "It is encouraging that Senate leaders, then the President and now House leaders have eventually come to agree with us about the value of taking more time to make the PATRIOT Act better. The amount of time is less important than the good faith effort that will be needed in improving the PATRIOT Act to strike the right balance in respecting Americans’ liberty and privacy, while protecting their security."

The ACLU's Caroline Fredrickson stated in a release, "Regardless of the length of the extension into next year, the most important issue is the need to reform the secret powers expanded by the Patriot Act to protect the privacy and liberty of ordinary Americans. A bipartisan majority of the Senate already agrees that the conference report that the House and the White House are pushing does not protect our most fundamental constitutional rights."

EU Seeks More Money and Disclosures from Microsoft

12/22. The European Commission (EC) issued a Statement of Objections, and releases, pertaining to its ongoing antitrust proceeding against Microsoft.

Back in March of 2004, the EC announced its decision mandating that Microsoft remove certain code from its products sold in the Europe, and that it license certain proprietary technology and intellectual property rights to its competitors. The EC also fined Microsoft 497 Euros in 2004.

See, stories titled "European Commission Seeks 497 Million Euros and Code Removal from Microsoft" in TLJ Daily E-Mail Alert No. 863, March 25, 2004, and "European Commission Releases Microsoft Decision" in TLJ Daily E-Mail Alert No. 883, April 23, 2004.

The EC's present Statement of Objections asserts that Microsoft has failed to comply with the March 2004 decision, and seeks more money and disclosures from Microsoft. See, EC release. The EC stated in another release that the fine would be "less than €2 million per day".

The U.S. Department of Justice's (DOJ) Antitrust Division has frequently criticized the EC's 2004 decision. At bottom, the US and the EC take vastly different approaches to the application of competition law to single firm conduct. See, for example, September 10, 2004 speech in Tokyo, Japan, by former Assistant Attorney General Hewitt Pate titled "Securing the Benefits of Global Competition". See also, stories titled "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004; "Pate Addresses US EU Differences on Antitrust, Microsoft, and IPR" in TLJ Daily E-Mail Alert No. 913, June 8, 2004; and "Pate Addresses US Competition Law And Differences With EU" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

Also, the Antitrust Division and the Federal Trade Commission (FTC) will hold hearings on single firm conduct early next year. See, story titled "Antitrust Division and FTC to Hold Hearings on Single Firm Conduct" in TLJ Daily E-Mail Alert No. 1,262, November 30, 2005.

The EC elaborated on December 22 that the 2004 decision "found Microsoft to have infringed the EC Treaty rules on abuse of a dominant position (Article 82) by leveraging its near monopoly in the market for PC operating systems onto the markets for work group server operating systems and for media players. One of the remedies imposed by the decision was for Microsoft to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers. The Statement of Objections indicates that the Commission’s preliminary view, supported by two reports from the Monitoring Trustee ..., is that Microsoft has not yet provided complete and accurate specifications for this interoperability information. After giving Microsoft an opportunity to reply to the Statement of Objections, the Commission may impose a daily penalty."

Brad SmithBrad Smith (at right), SVP and General Counsel of Microsoft, stated in a release that "We believe today's Statement of Objections is unjustified. The Commission has issued this Statement regarding technical documentation we submitted last week, even though by its own admission neither it nor the Trustee have even read or reviewed these new documents."

He continued that "We revised the technical documents last week at the Commission's request, responding to new feedback raised with us only six days before. In the interest of due process, we think it would have been reasonable for the Commission and the Trustee at least to read and review these new documents before criticizing them as being insufficient."

He added that "We are fully committed to comply with the Decision. We've shipped a new version of Windows, we've paid an historic fine, and we've provided unprecedented access to Microsoft technology to promote interoperability with other industry players. In total, we have now responded to more than 100 requests from the Commission. We continue working quickly to meet the Commission's new and changing demands. Yet every time we make a change, we find that the Commission moves the goal post and demands another change."

And, he said, "Of particular concern is the Commission's latest demand that the internal workings of Windows be documented and licensed, which can open the door to the production of clones of parts of the Windows operating system. During the September 3, 2004 hearing with President Vesterdorf, the Commission clearly stated this was not within the scope of its decision. Yet the Commission confuses disclosure of the source code with disclosure of the internals and insists that it will fine the company if it fails to address this."

More News

12/22. The Government Accountability Office (GAO) released a letter to Rep. Frank Wolf (R-VA) regarding "Information Technology: Responses to Subcommittee Post-hearing Questions Regarding the FBI’s Management Practices and Acquisition of a New Investigative Case Management System". Rep. Wolf is Chairman of the House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies. The FBI is a unit of the Department of Justice.

12/22. The Government Accountability Office (GAO) released a report [29 pages in PDF] titled "Homeland Security: DHS Needs to Improve Ethics-Related Management Controls for the Science and Technology Directorate".

12/22. The Department of Agriculture's Rural Utilities Service (RUS) published a notice in the Federal Register that lists the recipients of grant awards in FY 2005 under the Distance Learning and Telemedicine Grant Program. See, Federal Register, December 22, 2005, Vol. 70, No. 245, at Page 76021 - 76022.

12/22. Microsoft stated in a release that "Microsoft, Dr. Lee and Google have reached an agreement that settles their pending litigation. The parties have entered into a private agreement that resolves all issues to their mutual satisfaction. The terms of the agreement are confidential and all parties have agreed to make no other statements to the media regarding it. Microsoft is pleased with the terms of the settlement." See also, stories titled "Trial Court Issues Preliminary Injunction in Microsoft v. Kai-Fu Lee and Google" in TLJ Daily E-Mail Alert No. 1,214, September 15, 2005, and "Microsoft Sues Former Employee Who Joined Google" in TLJ Daily E-Mail Alert No. 1,178, July 20, 2005.

Senate Approves Six Month Extension of Sunsetted Provisions of the PATRIOT Act

12/21. The Senate approved S 2167, a short untitled bill to amend the USA PATRIOT Act, late on Wednesday, December 21, 2005. Section 224 of the PATRIOT sunsets 16 sections of the PATRIOT Act on December 31, 2005.

The substantive language of S 2167 provides that "Section 224(a) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (18 U.S.C. 2510 note) is amended by striking `December 31, 2005´ and inserting `July 1, 2006´."

This bill, which is sponsored by Sen. John Sununu (R-NH), would extend the debate over the sunsetted provisions of the PATRIOT Act for another six months. Also, it would delay enactment of numerous amendments to the PATRIOT Act that are contained within the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". Moreover, this would leave unenacted the various provisions of the conference report that are unrelated to the PATRIOT Act, such as the methamphetamine bill.

This delay also places the final vote at a time when Representatives, and some Senators, will be engaged in election campaigns.

Sen. Larry CraigThe bill has 31 cosponsors, only one of which is a Republican, Sen. Larry Craig (R-ID) (at right). He issued a release on December 21 in which he stated that "It was never my intention to let the Patriot Act expire. President Bush needs the tools to fight terrorism and protect Americans. However, when we permanently authorize vast powers to the government, we must do it right. When a law will be on the books for decades, spanning Presidents and generations, we can't make assumptions that everyone will act with the integrity of the Bush Administration."

The House will meet at 4:00 PM on December 22 in pro forma session.

President Bush offered this response. "I appreciate the Senate for working to keep the existing Patriot Act in law through next July, despite boasts last week by the Democratic leader that he had blocked the Act. No one should be allowed to block the Patriot Act to score political points, and I am grateful the Senate rejected that approach. The terrorists want to attack our country again and inflict even greater damage than they did on September 11, 2001. The Patriot Act is a vital tool for America in the war on terror. The Act has torn down the wall between law enforcement and intelligence officials to help us connect the dots and prevent attacks. The work of Congress on the Patriot Act is not finished. The Act will expire next summer, but the terrorist threat to America will not expire on that schedule. I look forward to continuing to work with Congress to re-authorize the Patriot Act."

Sen. Patrick Leahy (D-VT) also released a statement. He said that "This is a victory for bipartisanship, for checks and balances, and for respecting Americans' civil liberties while protecting their security. I appreciate the willingness of the Republican leadership to listen at last to a bipartisan majority that has acted in good faith and in what we feel are the best interests of the nation. This is a reasonable step that will allow the Judiciary Committee time to examine better ways to strike the right balance."

Earlier in the day on Wednesday, December 21, Bush administration officials continued their efforts to influence opponents in the Senate by making public statements in support of the conference report.

President Bush gave a speech on the South Lawn of the White House. He said, "In order to protect America, the United States Senate must reauthorize the Patriot Act. The terrorists still want to hit us again. There is an enemy that lurks, a dangerous group of people that want to do harm to the American people -- and we must have the tools necessary to protect the American people."

"It has been an effective tool; it has worked." Bush continued that "And the same as we protected the American people using the Patriot Act, we've also protected their civil liberties. There is extensive oversight on this very important program. The Patriot Act tore down the wall between law enforcement and intelligence communities, which makes it easier to connect the dots before an attack. The Patriot Act also gave law enforcement tools to investigate terrorism that they have already got to investigate other types of crimes."

Bush said that "The Senate is still debating this issue. A majority of the United States Senate supports reauthorization; a minority of senators is filibustering and preventing the Senate from voting to renew the Patriot Act. The Senate Democratic Leader recently boasted about killing the Patriot Act. This obstruction is inexcusable. The senators obstructing the Patriot Act need to understand that the expiration of this vital law will endanger America and will leave us in a weaker position in the fight against brutal killers."

Attorney General Alberto Gonzales and Secretary of Homeland Security Michael Chertoff also held a news conference on the morning of December 21. See, transcript.

Gonzales said that "For the past four years, the tools of the Patriot Act have been extremely viable in allowing us to deter and prevent attacks, to prosecute terrorism, and to prosecute other kinds of crimes. In ten days 16 of the provisions of the Patriot Act are scheduled to expire. That would be bad for this country. It would have serious operational consequences for the Department of Justice, including the Federal Bureau of Investigation. Generally if we were to lose these tools, it would mean that certain authorities could no longer be used beginning January 1."

He asserted that "This is not a choice between civil liberties and the Patriot Act. The Patriot Act includes many protections for liberties, and that's why the Department of Justice has been outstanding these past four years. The conference bill includes 30 additional safeguards of civil liberties. If you look at what some people consider the most controversial provisions, section 215, business records provision, and national security letters, under the conference bill it is now clear that you can consult an attorney when you receive one of these orders, or letters. It is now clear that you can challenge these in court."

Michael ChertofChertoff (at left) said that "Many of the tools which we are talking about using in the patriot act against terrorists are tools that have been used for years in the decades against drug dealers, or people involved in white collar crime. And they've been used effectively and they've been used without there being a significant impact on civil liberties."

"The question I ask myself when I hear people criticize roving wiretaps, for example, is, why is this something that we use successfully and prudently in the area of dealing with marijuana importers, but yet a tool that people want to deny us in the war against people who want to import chemical weapons or explosives."

Chertoff continued that "Why is it, for example, that delayed notification search warrants, which again, we use in all kinds of garden variety criminal cases, with the supervision of a judge, why should that tool be denied to our investigators when they're seeking to go into a house with a search warrant to see if there are explosives there, or other kinds of weapons that can be used against Americans."

The House approved the conference report on December 14, 2005, by a vote of 251-174. See, story "House Approves Conference Report on PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, December 15, 2005.

The Senate rejected a motion to invoke cloture on the conference report, by a vote of 52-47, on Friday, December 16, 2005. See, story titled "Cloture Motion on PATRIOT Act Extension Bill Defeated in Senate" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005.

See also, story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act", and story titled "Reaction to NSA Intercepts", both in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

FCC Report to Congress on More Spectrum for ERPs Suggests Use of Commercial Services

12/21. The Federal Communications Commission (FCC) released a report [72 pages in PDF] titled "Report to Congress on the Study to Assess Short-Term and Long-Term Needs for Allocations of Additional Spectrum Portions of the Electromagnetic Spectrum Spectrum for Federal, State and Local Emergency Response Providers". The report not only assesses the need for reallocation of spectrum; it also concludes that "there may now be a place for commercial providers to assist public safety".

Section 7502 of the Intelligence Reform and Terrorism Prevention Act of 2004 required that this report be written. This huge bill was S 2845 in the 108th Congress. It is now Public Law No. 108-458, and is codified at 6 U.S.C. § 413.

Section 7502 requires the FCC, in consultation with the Department of Homeland Security (DHS) and the National Telecommunications and Information Administration (NTIA), to "conduct a study to assess short-term and long-term needs for allocations of additional portions of the electromagnetic spectrum for Federal, State, and local emergency response providers, including whether or not an additional allocation of spectrum in the 700 megahertz band should be granted by Congress to such emergency response providers."

It also requires the DHS, in consultation with the FCC and NTIA, to "conduct a study to assess strategies that may be used to meet public safety telecommunications needs, including (1) the need and efficacy of deploying nationwide interoperable communications networks (including the potential technical and operational standards and protocols for nationwide interoperable broadband mobile communications networks that may be used by Federal, State, regional, and local governmental and nongovernmental public safety, homeland security, and other emergency response personnel); (2) the capacity of public safety entities to utilize wireless broadband applications; and (3) the communications capabilities of all emergency response providers, including hospitals and health care workers, and current efforts to promote communications coordination and training among emergency response providers."

The just released report addresses the short-term and long-term needs needs of government emergency response providers for more spectrum, the need for a nationwide interoperable broadband mobile communications network, and the use of commercial wireless technologies for public safety communications.

That is, this report goes beyond the requirements set for the FCC by Section 7502 of the intelligence reform bill. However, that bill was written before hurricanes Katrina and Rita.

The report concludes, "with respect to the short-term and long-term needs for allocations of additional portions of spectrum for federal, state and local emergency response providers, the Commission has undertaken a series of initiatives to free up additional public safety spectrum in the short term, and continues to evaluate public safety’s spectrum needs in the long-term. To this end, and at the urging of public safety, the Commission will expeditiously examine and analyze whether certain channels within the current allocation of twenty-four megahertz of public safety spectrum in the 700 MHz band could be modified to accommodate broadband communications."

The report also concludes that "as to the operation and administration of a potential nationwide interoperable broadband mobile communications network based upon input from federal, state, local and regional emergency response providers, emergency response providers would benefit from the development of an integrated, interoperable nationwide network capable of delivering broadband services throughout the country."

And, the report concludes, "as to the use of commercial wireless technologies, while commercial wireless technologies and services are not appropriate for every type of public safety communication, there may now be a place for commercial providers to assist public safety in securing and protecting the homeland."

In addition, the report states that "public safety entities generally oppose reliance upon commercial services", while commercial entities tend to support the idea.

The report goes on to discuss some of the advantages of using commercial services. For example, it states that "smart radios are capable of operating on multiple frequencies in multiple formats so that different systems can connect with each other. IP-based systems are capable of enabling communications between diverse radio systems and frequencies without requiring the replacement of existing radios. These systems interconnect emergency personnel and other resources across existing radio networks and other communications networks, and thus can achieve immediate interoperability of existing push-to-talk radio systems operating in separate spectrum bands as well as commercial voice and broadband systems."

In addition, "Wi-Fi and Wi-Max technologies permit emergency response providers to communicate information between offices and the field, which is especially helpful in non-mission critical situations. Other commercial wireless services, including Wireless Priority Service (WPS), as well as cellular technologies that enable easy one-to-one and one-to-many half-duplex communications (e.g., ``Push-to-Talk´´) also may further the ability of emergency response providers to effectively communicate with each other."

The report also states that "the incorporation of commercial satellite services into either a private public safety or commercial interoperable network that also includes terrestrial wireless systems would help to ensure that effective communication services are available to emergency response providers."

USPTO Seeks Comments on Subject Matter Eligible for Patents

12/21. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register requesting comments regarding revisions to the guidelines used by USPTO personnel in their review of patent applications to determine whether the claims in a patent application are directed to patent eligible subject matter.

The USPTO seeks comments on, among other topics, "claims that perform data transformation" and "claims directed to a signal per se". With respect to the later, the USPTO asks "If claims directed to a signal per se are determined to be statutory subject matter, what is the potential impact on internet service providers, satellites, wireless fidelity (WiFi [reg]), and other carriers of signals?"

The deadline to submit comments is June 30, 2006. See, Federal Register, December 20, 2005, Vol. 70, No. 243, at Pages 75451 - 75452.

The notice states that the USPTO seeks comments on several specific topics.

For example, it seeks comments on claims that perform data transformation. It states that "While the Patent Subject Matter Eligibility Interim Guidelines explain that physical transformation of an article or physical object to a different state or thing to another establishes that a claimed invention is eligible for patent protection, Annex III to the Patent Subject Matter Eligibility Interim Guidelines explains that identifying that a claim transforms data from one value to another is not by itself sufficient for establishing that the claim is eligible for patent protection. Therefore, claims that perform data transformation must still be examined for whether there is a practical application of an abstract idea that produces a useful, concrete, and tangible result."

The USPTO asks, "Is the distinction between physical transformation and data transformation appropriate in the context of the Patent Subject Matter Eligibility Interim Guidelines? If not, please explain why and provide support for an alternative analysis."

The USPTO notice also seeks comments on the 1998 opinion of the U.S. Court of Appeals (FedCir) in State Street Bank & Trust v. Signature Financial Group, which is reported at 149 F.3d 1368.

It asks, "Is the USPTO interpretation of" in State Street "as holding that if there is no physical transformation, a claimed invention must necessarily, either expressly or inherently, produce a useful, concrete, and tangible result (rather than just be ``capable of´´ producing such a result) either too broad or too narrow? If so, please suggest an alternative interpretation and reasons therefor." (Parentheses in original.)

The USPTO notice also seeks comments on claims to signals per se. It states that "Annex IV to the Patent Subject Matter Eligibility Interim Guidelines explains why the USPTO considers claims to signals per se, whether functional descriptive material or non-functional descriptive material, to be nonstatutory subject matter."

It then asks, "Does the USPTO analysis represent a reasonable extrapolation of relevant case law? If not, please explain why and provide support for an alternative analysis. If claims directed to a signal per se are determined to be statutory subject matter, what is the potential impact on internet service providers, satellites, wireless fidelity (WiFi [reg]), and other carriers of signals?" (Parentheses and brackets in original.)

Also, the USPTO notice raises the subject of Laboratory Corp. of America v. Metabolite Laboratories. See, June 8, 2004 opinion [PDF] of the Court of Appeals (FedCir), and August 26, 2005, amicus curiae brief of the Office of the Solicitor General (OSG) opposing the petition for writ of certiorari. The Supreme Court granted certiorari on October 31, 2005. See, story titled "Supreme Court Grants Certiorari in LabCorp v. Metabolite" in TLJ Daily E-Mail Alert No. 1,244, November 1, 2004.

The notice states that "The USPTO also notes that the U.S. Supreme Court has granted certiorari ... The USPTO expects that a decision in LabCorp will be rendered sometime before the end of June 2006. Since the Court's decision in LabCorp may impact the broader question of patent subject matter eligibility under 35 U.S.C. 101, the USPTO is extending the period for public comment on the USPTO's Patent Subject Matter Eligibility Interim Guidelines until June 30, 2006."

It adds that "The USPTO will publish a notice further extending the period for public comment on the USPTO's Patent Subject Matter Eligibility Interim Guidelines if necessary to permit the comments to take into account the Court's decision in LabCorp."

Texas Amends Spyware Complaint Against Sony BMG

12/21. The state of Texas filed an amended complaint [14 pages in PDF] in Texas v. Sony BMG, a civil case pending in the trial court in Texas regarding Sony BMG's sale of music CDs that install software on purchasers' computers, without notice to purchasers.

The original complaint alleged violations of two subsections of the state of Texas's "Consumer Protection Against Consumer Spyware Act", or CPACSA, which is codified at Tex. Bus. & Com. Code, § 48.001 et seq. (Vernon Supp. 2005). This latest pleading, which is titled "Plaintiff’s First Amended Complaint", adds allegations of violation of another subsection of the CPACSA and several sections of the Texas Deceptive Trade Practices-Consumer Protection Act (TDPA), which is codified at Tex. Bus. & Com. Code, § 17.47.

Greg AbbottGreg Abbott (at right), the Attorney General of the State of Texas, stated in a release that "We keep discovering additional methods SONY used to deceive Texas consumers who thought they were simply buying music". The state has in its web site an online consumer complaint form.

Abbott added that "Retailers that continue to sell these CDs may be just as liable under the law as SONY".

The state of Texas filed its original complaint [8 pages in PDF] on November 21, 2005. That complaint alleged that Sony has sold audio CDs with software, some of which is related to content protection, which software also degrades the consumers' PC performance, and exposes the PC to certain virus threats, without disclosure to consumers. See, story titled "Texas Sues Sony BMG Alleging Violation of Texas Spyware Statute" in TLJ Daily E-Mail Alert No. 1,258, November 22, 2005.

The original complaint alleged that Sony "has knowingly caused computer software to be copied to a computer in this state, of which it is not the owner or operator, and used that software to: A. Change the name, location, or other designation of computer software to prevent the owner from locating and removing the software, in violation of CPASCA § 48.053(5); and B. Create randomized or intentionally deceptive file names or random or intentionally deceptive directory folders, format, or registry entries to avoid detection and prevent the owner from removing computer software, in violation of CPASCA § 48.053(6)."

The original complaint also alleges that Sony has induced computer users "to install a computer software component to the computer by intentionally misrepresenting the extent to which the installation is necessary for security or privacy reasons, to open or view text, or to play a particular type of musical or other content, in violation of CPASCA § 48.055(1)."

The just filed amended complaint repeats these allegations, and adds another CPACSA allegation. It alleges that Sony has cause software to be installed on users' computers, and used the software to "Prevent the owner’s or operator’s reasonable efforts to block the installation of or to disable computer software by: 1) presenting the owner or operator with an option to decline the installation of software knowing that, when the option is selected, the installation process will continue to proceed; or 2) misrepresenting that software has been disabled, in violation of Spyware Act § 48.053(4)".

The amended complaint also adds allegations of violation of the Texas Deceptive Trade Practices-Consumer Protection Act (TDPA)

This case is State of Texas v. Sony BMG Music Entertainment LLC, District Court of Travis County, 126th Judicial District, Texas, No. GV505065.

Disclosure. One of the attorneys for the state of Texas whose name appears on the complaint is a former law school classmate and roommate of the publisher of TLJ. Readers may wish to take this into consideration in assessing the accuracy and objectivity of any TLJ coverage of this lawsuit.

People and Appointments

12/21. The Senate confirmed Michael Copps and Deborah Tate to be Commissioners of the Federal Communications Commission (FCC). There remains one Republican vacancy on the FCC. See also, story titled "Senate Commerce Committee Holds Hearing on Nominations of Tate and Copps" in TLJ Daily E-Mail Alert No. 1,272, December 14, 2005.

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12/21. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, and sets comment deadlines for, its Notice of Proposed Rulemaking (NPRM) [24 pages in PDF] regarding amendments to its unsolicited facsimile advertising rules and the established business relationship (EBR) exception to the rules. The FCC adopted and released this NPRM on December 9, 2005. It is FCC 05-206 in CG Docket No. 02-278. See, Federal Register, December 19, 2005, Vol. 70, No. 242, at Pages 75102 - 75110. Initial comments are due by January 18, 2006. Reply comments are due by February 2, 2006.

12/21. The Progress and Freedom Foundation (PFF) release a paper [9 pages in PDF] titled "Should the Patent Office be an Independent Corporation? Pros and Cons". The author is the PFF's Solveig Singleton. She concludes that "Restructuring the PTO to make it in some respects more responsive to market forces may ultimately prove to be necessary, if more incremental reforms to the patent office fail. At the present time, the patent system is working well enough in the United States that restructuring may do more harm than good. However, if the reputation of U.S. patents continues to suffer internationally, and policymakers determine that there is fire where there is smoke, the balance might well tip the other way." See also, S 507 (105th Congress), the "Omnibus Patent Act of 1997", and HR 400 (105th Congress), the "21st Century Patent System Improvement Act". Title I of both bills, as introduced, provided for the creation of the "United States Patent and Trademark Organization" as a government corporation. Like so many other proposals for reforming the patent system over the years, this proposal did not become law.

12/21. The U.S. Patent and Trademark Office (USPTO) announced that it will expand teleworking by patent employees. It announced that it will deploy about 40 employees per week into a new program, and attain a total of about 500 employees in the program by September of 2006. The USPTO stated in a release that "Participants will have all the communications tools and application processing capabilities they need to do their jobs remotely. The program incorporates hoteling, by which participants can reserve time in on-campus ``shared offices´´ to conduct certain business such as interviewing applicants and attorneys, receive training, attend meetings, and use on-site resources as needed."

12/21. A grand jury of the U.S. District Court (NDCal) returned an indictment that charges Suibin Zhang with three counts of computer fraud in violation of 18 U.S.C. § 1030(a)(4), three counts of theft, misappropriation and unauthorized downloading of trade secrets in violation of 18 U.S.C. §§ 1832(a)(1), (2) and (4), two counts of unauthorized copying and transmission of trade secrets in violation of 18 U.S.C. §§ 1832(a)(2) and (4), and one count unauthorized possession of stolen trade secrets in violation of 18 U.S.C. §§ 1832(a)(3) and (4). The U.S. Attorneys Office (USAO) for the Northern District of California stated in a release that Zhang was previously an engineer and product development manager at Netgear, which makes computer networking products. He also had access to the extranet of Marvell Semiconductor, a customer of Netgear. He signed a non-disclosure agreement, and had access to trade secrets. He then took a job at Broadcom. But first, he downloaded dozens for files containing proprietary and trade secret information about switches and transceiver products from the Marvell extranet. The USAO release continues that he that provides Marvell trade secrets to Broadcom.

Go to News from December 16-20, 2005.