Supreme Court Rules on Patent Obviousness in KSR v. Teleflex

4/30. The Supreme Court of the US (SCUS) issued its unanimous opinion [31 pages in PDF] in KSR International v. Teleflex, a case regarding patent obviousness. The SCUS reversed the January 6, 2005, opinion [15 pages in PDF] of the U.S. Court of Appeals (FedCir) and remanded.

Section 103 provides that one cannot obtain a patent on an invention that is "obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains". This opinion rejects the Federal Circuit's application of its TSM test for obviousness. This opinion will make it easier for patent examiners and federal judges to reject applications and patents on grounds of obviousness.

This is a patent dispute involving adjustable floor pedals. The Court of Appeals merely issued a non-precedential opinion. However, the subject of obviousness is pertinent to technology related patents.

This case attracted consideration outside attention. The Supreme Court received over three dozen amicus curiae briefs on the merits. Many were submitted by technology companies (including Cisco, Intel, IBM, Qualcomm, and Time Warner, IAC/Interactive, and Viacom) and groups that are active on technology related issues (including the Business Software Alliance, Progress and Freedom Foundation, Computer and Communications Industry Association, American Intellectual Property Law Association, and Intellectual Property Owners Association).

35 U.S.C. § 103 addresses "Conditions for patentability; non-obvious subject matter". Subsection (a) references obviousness. It provides that "A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made."

Proceedings Below. The plaintiffs below are Teleflex International and Technology Holding Company. Teleflex is the assignee of U.S. Patent No. 6,237,565 B1, titled "adjustable pedal assembly with electronic throttle control". It pertains to things on the floor of a car that are used to control gas, breaking, and the clutch.

The plaintiffs filed a complaint in U.S. District Court (EDMich) against KSR International alleging infringement of this patent. The District Court granted summary judgment to KSR. It held that the sole claim of the patent at issue in the case is invalid for obviousness. That opinion is reported at 298 F. Supp. 2d 581.

Teleflex appealed. The U.S. Court of Appeals (FedCir) issued its non-precedential opinion [PDF] vacating the judgment and remanding.

The Federal Circuit wrote that "When obviousness is based on the teachings of multiple prior art references, the movant must also establish some ``suggestion, teaching, or motivation´´ that would have led a person of ordinary skill in the art to combine the relevant prior art teachings in the manner claimed. ... ``The reason, suggestion, or motivation to combine [prior art references] may be found explicitly or implicitly: 1) in the prior art references themselves; 2) in the knowledge of those of ordinary skill in the art that certain references, or disclosures in those references, are of special interest or importance in the field; or 3) from the nature of the problem to be solved, ‘leading inventors to look to references relating to possible solutions to that problem.´ ´´" (Citations to earlier Federal Circuit opinions omitted. Brackets in original.)

The Federal Circuit continued that "Our case law makes clear that the best defense against the subtle but powerful attraction of a hindsight-based obviousness analysis is rigorous application of the requirement for a showing of the teaching or motivation to combine prior art references."

It concluded that "we have consistently held that a person of ordinary skill in the art must not only have had some motivation to combine the prior art teachings, but some motivation to combine the prior art teachings in the particular manner claimed."

The Federal Circuit's approach or test is also know by an acronym, TSM.

Supreme Court. Justice Kennedy wrote the unanimous opinion of the SCUS.

The Supreme Court last examined Section 103 in its 1966 opinion in Graham v. John Deere Co., 383 U.S. 1.

The Supreme Court began by "rejecting the rigid approach of the Court of Appeals. Throughout this Court's engagement with the question of obviousness, our cases have set forth an expansive and flexible approach inconsistent with the way the Court of Appeals applied its TSM test here."

"To this end, Graham set forth a broad inquiry and invited courts, where appropriate, to look at any secondary considerations that would prove instructive." The Court continued, "Neither the enactment of §103 nor the analysis in Graham disturbed this Court’s earlier instructions concerning the need for caution in granting a patent based on the combination of elements found in the prior art. For over a half century, the Court has held that a ``patent for a combination which only unites old elements with no change in their respective functions ... obviously withdraws what is already known into the field of its monopoly and diminishes the resources available to skillful men.´´ ... This is a principal reason for declining to allow patents for what is obvious. The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." (Citation omitted.)

The Supreme Court reviewed, and offered this summation of, its last half Century of precedent: "When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill."

Although, the Court conceded that "Following these principles may be more difficult in other cases than it is here because the claimed subject matter may involve more than the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for the improvement. Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue."

The Supreme Court wrote that the Federal Circuit's TSM test "captured a helpful insight", but as it is applied by the Federal Circuit is incompatible with Supreme Court precedent.

It elaborated that "The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility."

It added that "The flaws in the analysis of the Court of Appeals relate for the most part to the court’s narrow conception of the obviousness inquiry reflected in its application of the TSM test. In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under §103."

The Supreme Court then applied these principles to the claimed invention in this case, and found it obvious. Hence, it reversed the judgment of the Court of Appeals.

Reaction. The Computer and Communications Industry Association (CCIA) filed an amicus curiae brief [PDF] on the merits urging reversal. After the ruling, Ed Black, head of the CCIA, stated in a release that "We are encouraged by the Court’s efforts to clamp down on obvious patents  ... This is the Court's second unanimous decision in recent months that tries to rein in runaway patents. It reaffirms what we have always said: the patent system's purpose is to promote innovation, not patents. Real patent reform is still needed to reduce the vast number of junk patents."

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "The ruling in the KSR case will improve patent quality by enabling examiners and the courts to deny patents to questionable applications. "

He added that the the decision in this case and in Microsoft v. AT&T do not diminish "the need for Congress to act quickly to modernize our existing law. We strongly urge Congress to adopt The Patent Reform Act of 2007, introduced a few weeks ago in the US House of Representatives and the US Senate."

Solveig Singleton, of the Progress and Freedom Foundation (PFF), wrote in a release that "A more narrow opinion that still addresses the substantive issue of obviousness is hard to imagine. There was little guidance from the Court on the systemic issues raised by amici and the parties, such as evidentiary standards, presumptions of validity, how or why to improve the examiner’s and the courts' access to the opinions of ``persons of ordinary skill in the art,´´ and so on." See also, amicus curiae brief [25 pages in PDF] of the PFF urging reversal.

See also, amicus curiae brief of the Office of the Solicitor General, on the merits, urging reversal.

This case is KSR International Co. v. Teleflex, Inc., et al., Supreme Court of the U.S., Sup. Ct. No. 04-1350, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1152. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Michigan, D.C. No. 02-74586.

See also, Supreme Court docket and transcript [75 pages in PDF] of November 28, 2007, oral argument.

See also, story titled "Supreme Court Grants Cert in Patent Obviousness Case" in TLJ Daily E-Mail Alert No. 1,399, July 26, 2006, and story title "Supreme Court Requests Brief From Solicitor General in Patent Obviousness Case" in TLJ Daily E-Mail Alert No. 1,227, October 5, 2005.

Supreme Court Rules in Microsoft v. AT&T

4/30. The Supreme Court of the U.S. issued its opinion [30 pages in PDF] in Microsoft v. AT&T [PDF], a patent infringement case involving interpretation of 35 U. S. C. § 271(f)(1). The Supreme Court held that Microsoft is not liable for violation of Section 271(f)(1), and reversed judgment of the Court of Appeals.

Background. The Supreme Court wrote in its opinion that "Windows is designed, authored, and tested at Microsoft's Redmond, Washington, headquarters. Microsoft sells Windows to end users and computer manufacturers, both foreign and domestic. Purchasing manufacturers install the software onto the computers they sell. Microsoft sends to each of the foreign manufacturers a master version of Windows, either on a disk or via encrypted electronic transmission. The manufacturer uses the master version to generate copies. Those copies, not the master sent by Microsoft, are installed on the foreign manufacturer's computers. Once assembly is complete, the foreign-made computers are sold to users abroad."

AT&T is the assignee of U.S. Patent Number Reissue 32,580, titled "Digital Speech Coder", which is a reissue of U.S. Patent Number 4,472,832.

The Supreme Court wrote that this '580 patent "is for an apparatus ... capable of digitally encoding and compressing recorded speech." It continued that Windows "contains software that enables a computer to process speech in the manner claimed by the ’580 patent.

AT&T filed a complaint in 2001 in U.S. District Court (SDNY) against Microsoft alleging infringement of this '580 patent for domestic and foreign installations of Windows.

The Supreme Court continued that "Neither Windows software (e.g., in a box on the shelf) nor a computer standing alone (i.e., without Windows installed) infringes AT&T’s patent. Infringement occurs only when Windows is installed on a computer, thereby rendering it capable of performing as the patented speech processor. Microsoft stipulated that by installing Windows on its own computers during the software development process, it directly infringed the ’580 patent. Microsoft further acknowledged that by licensing copies of Windows to manufacturers of computers sold in the United States, it induced infringement of AT&T’s patent." (Parentheses in original. Footnotes omitted.)

However, the matter in this proceeding is the use of the master disks and electronic transmissions that Microsoft dispatched to foreign manufacturers.

The District Court held that Microsoft is liable for infringement. The U.S. Court of Appeals (FedCir) affirmed in a divided opinion [pages in DPF] issued on July 13, 2005. This opinion is also reported at 414 F. 3d 1366.

Section 271(f). Section 271 pertains to infringement of patents. For example, Subsection 271(a) provides in part that "whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent."

That is, this section does not have extraterritorial reach. It does not apply to things made and sold in another country.

However, Subsection 271(f)(1), which is at issue in this case, provides that "Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer."

Supreme Court Holding. The Supreme Court summed up the pertinent facts as follows: "AT&T holds a patent on an apparatus for digitally encoding and compressing recorded speech. Microsoft's Windows operating system, it is conceded, has the potential to infringe AT&T’s patent, because Windows incorporates software code that, when installed, enables a computer to process speech in the manner claimed by that patent. It bears emphasis, however, that uninstalled Windows software does not infringe AT&T’s patent any more than a computer standing alone does; instead, the patent is infringed only when a computer is loaded with Windows and is thereby rendered capable of performing as the patented speech processor."

The Supreme Court wrote that the question presented is, "Does Microsoft’s liability extend to computers made in another country when loaded with Windows software copied abroad from a master disk or electronic transmission dispatched by Microsoft from the United States?"

It held that Microsoft is not liable. It reasoned that "The master disk or electronic transmission Microsoft sends from the United States is never installed on any of the foreign-made computers in question. Instead, copies made abroad are used for installation. Because Microsoft does not export from the United States the copies actually installed, it does not ``suppl[y] ... from the United States´´ ``components´´ of the relevant computers, and therefore is not liable under §271(f) as currently written.

Hence, it reversed the judgment of the Court of Appeals.

Reaction. After the Supreme Court issued its opinion, Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that this decision "will re-establish incentives for software companies to conduct research and development in the US." He also said that this ruling, and the ruling in KSR v. Teleflex, "will go a long way in enhancing future innovation and productivity". Microsoft is a member of the BSA.

Microsoft's General Counsel, Brad Smith, stated in a release that this "decision is important for the entire information technology industry, adding clarity and balance to our patent system. This decision promotes a global patent system that works. The ruling ensures that U.S. courts, like courts elsewhere, can respect the patent laws of other countries, helping promote cooperation among patent systems worldwide."

He added that this decision "has implications for many of our other patent cases. In particular, we believe the damage awards against Microsoft in both the Alcatel-Lucent and Eolas cases will be revisited in light of this ruling, and we welcome this result."

This case is Microsoft Corporation v. AT&T Corp., Supreme Court of the U.S., Sup. Ct. No. 05–1056, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1285. The Court of Appeals heard an appeal from the U.S. District Court for the Southern District of New York, D.C. No. 01-CV-4872.

See also, Supreme Court docket, and transcript [65 pages in PDF] of February 21, 2007, oral argument.

Antitrust Division Will Not Oppose IEEE's Standards Setting Process

4/30. The Department of Justice's (DOJ) Antitrust Division issued a business review letter (BRL) stating that it will not oppose a proposal by the Institute of Electrical and Electronics Engineers (IEEE) and its Standards Association (IEEE-SA) to implement a policy on the disclosure and licensing of patents in IEEE’s standards setting process.

The letter, addressed to Michael Lindsay of the law firm of Dorsey & Whitney, states that the Antitrust Division "has no present intention to take antitrust enforcement action" with respect to the IEEE-SA's "proposed patent information policy that will allow patent holders to publicly commit to specific restrictions on their future licensing terms and conditions for the use of patents that are essential to IEEE standards."

The Antitrust Division issued another BRL to another standards development organization (SDO) on October 30, 2006. See, letter to legal counsel for the VMEbus International Trade Association (VITA) stating that the Antitrust Division will not oppose a proposal by the VITA to implement a policy on the disclosure and licensing of patents. See also, story titled "DOJ Approves VITA Patent Policy" in TLJ Daily E-Mail Alert No. 1,479, October 31, 2006.

Thomas Barnett (at right), the Assistant Attorney General in charge of the Antitrust Division, stated in a release that "The requests from VITA and IEEE show that individual SDOs are working to find patent disclosure and licensing policies that will improve the efficiency of their standard-setting activities ... The antitrust laws permit reasonable efforts to enhance the effectiveness of such beneficial collaborative activities."

Judy Gorman, Managing Director of the IEEE-SA, stated in a release that "IEEE standards policies and procedures must change as the world changes to ensure our standards serve those who create and use them ... Our new patent policy is a good example of this. We spent several years creating this policy and had strong participation from industry in doing so. Our new policy encourages voluntary disclosure of maximum royalty rates and other licensing terms and allows IEEE standards working groups to include these in their comparison of relative costs for the technology alternatives they consider for a standard. As a result, our working groups will make choices based on more informed cost-performance evaluations. This should encourage competition and benefit anyone who seeks to comply with IEEE standards."

The letter states that the Antitrust Division "analyzes the competitive effects of standard-setting activities under the rule of reason unless the standard-setting process is being ``used as a sham to cloak naked price fixing or bid rigging.´´ We examine both the expected competitive benefits of IEEE's proposed patent policy and its potential to restrain competition." (Footnotes omitted from quotations of letter.)

The release offers this summary of the patent policy. It would give "holders of patents essential to IEEE standards the option of publicly committing to the most restrictive licensing terms they would offer. Under the policy, the patent holder could also choose a number of other options. It could: choose not to provide any licensing information; state that it does not believe its patents are essential to the IEEE standard; state that it will not assert its essential patent claims against implementors of the standard; or commit to license its essential patent claims on reasonable and nondiscriminatory terms. The policy also clarifies that these types of assurances about future patent licenses are irrevocable, and that they are binding on affiliates of the patent holder. IEEE-SA implementation of the patent policy should permit IEEE "standard-setters" to access the relative costs of competing technologies."

Commitments to licensing terms for potentially essential patent claims would be made using an IEEE-SA Letter of Assurance (LOA) form.

The letter reasons that "Although the proposed IEEE-SA policy does not require patent holders to publicly commit to their most restrictive licensing terms during the standard-setting process, the ability to make such commitments could generate similar benefits as patent holders may compete to offer the most attractive combination of technology and licensing terms."

It adds that "IEEE-SA working group members may make better informed decisions by considering potential licensing fees when weighing the relative costs of technological alternatives in addition to their technical merits. Moreover, the increased predictability of licensing terms, created by LOA commitments and the knowledge that such commitments bind the patent holder's affiliates and any future patent assignees, could lead to faster development, implementation, and adoption of a standard as well as fewer litigated disputes after a standard is set."

It continues that "The proposed patent information policy permits voluntary commitments to most restrictive licensing terms, but prohibits discussion of specific licensing terms within IEEE-SA standards development meetings. Based on your statements, we understand that this prohibition extends to joint negotiations of licensing terms within standards development meetings."

However, the letter also states that the Antitrust Division "observes in this regard that IEEE's current policies permit limited discussions of costs related to proposed standards. Such discussion, could, in certain circumstances, rise to the level of joint negotiation of licensing terms. You have not requested, and we are not providing, the Department's views on joint negotiations that might take place inside or outside such standards development meetings or IEEE sponsored meetings."

Moreover, it adds that the proposed patent policy "will prohibit standard setters from discussing the prices at which standardized products would be sold. The Department likely would challenge under section 1 of the Sherman Act any activities that reduced competition by using IEEE-SA's proposed patent policy as a cover to fix the prices of downstream standardized products."

Also, "The Department would also be likely to challenge efforts by patent holders to rig their LOAs by agreeing on the licensing terms they will disclose to IEEE-SA. IEEE-SA should continue its efforts to educate those who set standards under its auspices about the consequences of such activities."

GAO Report Addresses Data Breaches at Government Agencies

4/30. The Government Accountability Office (GAO) released a report [PDF] titled "Privacy: Lessons Learned about Data Breach Notification". It pertains to loss of data by government agencies, such as the Veterans Administration's loss of a computer laptop containing personally identifiable information (PII) on approximately 26.5 Million veterans and active duty members.

The report states that "existing laws generally do not require agencies to notify affected individuals of data breaches".

The report offers seven recommendations or comments. First, "Rapid internal notification of key government officials is critical." Second, "Because incidents vary, a core group of senior officials should be designated to make decisions regarding an agency’s response."

Third, "Mechanisms must be in place to obtain contact information for affected individuals." Fourth, "Determining when to offer credit monitoring to affected individuals requires risk-based management decisions." Fifth, "Interaction with the public requires careful coordination and can be resource-intensive."

Sixth, "Internal training and awareness are critical to timely breach response, including notification." And seventh, "Contractor responsibilities for data breaches should be clearly defined."

People and Appointments

4/30. Ben Aderson joined the AeA as Manager and Counsel, Technology Policy and Manager, State Public Policy. He previously worked for the Federal Trade Commission (FTC) and Rep. Anthony Weiner (D-NY). In addition, Alan Vazquez joined the AeA as Manager and Counsel of Domestic Policy. He previously worked for the Recording Industry Association of America (RIAA) and Microsoft. AeA is an acronym for American Electronics Association. However, the AeA now states that its name is now longer an acronym, and that it is now a high tech trade association.

More News

4/30. The Federal Communications Commission (FCC) released a public notice [2 pages in PDF] (DA 07-1953) regarding the Advanced Wireless Service (AWS) auction (No. 66) held in September of 2006. This notice announces the grant of licenses to the winning bidders listed in Attachment A [2 pages in PDF]. The FCC stated in a separate release [PDF] that "With the Public Notice released today, the Bureau has granted all of the 1,087 licenses won in the auction, with the exception of one license subject to a September 29, 2007 deadline for the applicant to file a certification to qualify for a Tribal Land Bidding Credit." See also, Attachment A1 [PDF], Attachment B [PDF] and Attachment C [PDF].

4/30. The Federal Communications Commission (FCC) held a hearing in Tampa, Florida, regarding its rules that regulate and restrict ownership of media companies. See, statement [PDF] by Kevin Martin, statement [PDF] by Michael Copps, statement [PDF] by Jonathan Adelstein, statement [PDF] by Deborah Tate, and statement [PDF] by Robert McDowell.

4/30. The Federal Communications Commission (FCC) published in the Federal Register its semiannual regulatory agenda, titled in full "Unified Agenda of Federal Regulatory and Deregulatory Actions -- Spring 2007". This agenda lists open proceedings, including inactive proceedings. See, Federal Register, April 30, 2007, Vol. 72, No. 82, at Pages 23466-23529.

4/30. The Federal Trade Commission (FTC) published in the Federal Register its semiannual regulatory agenda. See, Federal Register, April 30, 2007, Vol. 72, No. 82, at Pages 23568-23580.

4/30. The Department of Homeland Security (DHS) published in the Federal Register its semiannual regulatory agenda. See, Federal Register, April 30, 2007, Vol. 72, No. 82, at Pages 22574-22674.

4/30. The Department of Justice (DOJ) published in the Federal Register its semiannual regulatory agenda. See, Federal Register, April 30, 2007, Vol. 72, No. 82, at Pages 22774-22823.

4/30. The National Science Foundation (NSF) published in the Federal Register its semiannual regulatory agenda. See, Federal Register, April 30, 2007, Vol. 72, No. 82, at Page 23342.

4/30. The Privacy and Civil Liberties Oversight Board (PCLOB) published in the Federal Register its semiannual regulatory agenda. See, Federal Register, April 30, 2007, Vol. 72, No. 82, at Page 23394.

4/30. The Securities and Exchange Commission (SEC) published in the Federal Register its semiannual regulatory agenda. See, Federal Register, April 30, 2007, Vol. 72, No. 82, at Pages 23616-23640.

4/30. The U.S. Court of Appeals (7thCir) issued its opinion in Vincent v. City Colleges of Chicago, a copyright case. The Court of Appeals affirmed in part, reversed in part, and remanded. The Court of Appeals held, among other things, that a withdrawal of consent to make copies of a copyrighted book need not be in writing. This case is Veronica Vincent v. City Colleges of Chicago, et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-3082, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 04 C 7641, Judge Harry Leinenweber presiding.

4/30. The U.S. Court of Appeals (9thCir) issued its opinion [22 pages in PDF] in Jarvis v. K2, a copyright case involving photographs, the collective works privilege codified at 17 U.S.C. § 201(c), and damages for copyright infringement. The Court of Appeals affirmed in part, reversed in part, and remanded. It reversed the finding that certain collage advertisements were privileged under § 201(c). This case is Chase Jarvis and Chase Jarvis, Inc. v. K2, Inc. and K-2 Corporation, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 05-35609, an appeal from the U.S. District Court for the Western District of Washington, D.C. No. CV-03-01265-TSZ, Judge Thomas Zilly presiding.

4/30. The Office of the U.S. Trade Representative (OUSTR) released in annual Special 301 report [52 pages in PDF] regarding countries that deny adequate and effective protection of intellectual property or deny fair and equitable market access to U.S. artists and industries that rely upon intellectual property protection. See also, OUSTR release.

4/30. The Government Accountability Office (GAO) released a report [159 pages in PDF] titled "Information Technology: Immigration and Customs Enforcement Needs to Fully Address Significant Infrastructure Modernization Program Management Weaknesses".

House Commerce Committee Leaders Write Gutierrez about Alleged Misconduct in Department of Commerce OIG

4/27. Rep. John Dingell (D-MI), Rep. Joe Barton (R-TX), Rep. Bart Stupak (D-MI), and Rep. Ed Whitfield (R-KY) sent a letter [5 pages in PDF] to Secretary of Commerce Carlos Gutierrez regarding the Department of Commerce's (DOC) Inspector General, Johnnie Frazier, and members of his staff.

The four Representatives are the Chairmen and ranking Republicans on the House Commerce Committee (HCC) and its Subcommittee on Oversight and Investigations (SOI).

Frazier (at right) has been the DOC's IG since July 20, 1999.

The four wrote that "We have received numerous serious allegations of misconduct against Inspector General Johnnie Frazier and senior members of his staff."

They elaborated that the allegations "related to travel fraud, contracting irregularities, wasteful expenditures, favoritism, pre-selection of Senior Executive Service (SES) candidates, retaliation against whistleblowers, destruction of evidence, and obstruction of justice." They added that "we are troubled about the overall management, professionalism, independence, and effectiveness" of the OIG.

The letter also propounds numerous interrogatories to be answered by the DOC regarding Frazier and 16 current or former senior members of the OIG.

The four Representatives also wrote a letter [9 pages in PDF] to Frazier that provides further details about the allegations of misconduct. They also wrote a letter [16 pages in PDF] to James Burrus, of the Federal Bureau of Investigation, the Chairman of the President's Council on Integrity and Efficiency's (PCIE) Integrity Committee. The letter to Burrus attaches copies of the letters to the DOC and Frazier. It requests that the Integrity Committee work expeditiously to conclude its review, and to brief DOC staff. Finally, the four Representatives also wrote a letter [16 pages in PDF] to Scott Bloch, Special Counsel, U.S. Office of Special Counsel.

FCC Releases 700 MHz Band Order and FNPRM

4/27. The Federal Communications Commission (FCC) adopted on April 25, and released on April 27, 2007, a Report and Order and Further Notice of Proposed Rulemaking [190 pages in PDF] regarding rules governing wireless licenses in the 698-806 MHz Band, which is also sometimes referred to as the 700 MHz Band, currently used by television broadcasters in channels 52-69, and which will be made available for wireless services.

This item makes rules changes, makes tentative conclusions, and seeks public comments as to unresolved matters. It addresses several proceedings -- the 700 MHz Commercial Services proceeding (see, WT Docket No. 06-150, CC Docket No. 94-102, and WT Docket No. 01-309), the 700 MHz Guard Bands proceeding (see, WT Docket Nos. 06-169 and 96-86), and the 700 MHz Public Safety proceeding (see, PS Docket No. 06-229 and WT Docket No. 96-86). See also, FCC release summarizing this item.

FCC Chairman Kevin Martin explained in his separate statement [PDF] that "We need a real third broadband competitor. ... The upcoming auction presents the single most important opportunity for us to achieve this goal. Depending on how we structure the upcoming auction, we will either enable the emergence of a third broadband pipe -- one that would be available to rural as well as urban American -- or we will miss our biggest opportunity."

See also, statement [PDF] by Commissioner Michael Copps, statement [PDF] by Commissioner Jonathan Adelstein, statement [PDF] by Commissioner Deborah Tate, and statement [PDF] by Commissioner Robert McDowell.

The Report and Order (R&O) portion of this item states that "With regard to the 700 MHz Commercial Services proceeding, we decide to adopt a mix of geographic license area sizes for the commercial services, including Cellular Market Areas (CMAs), Economic Areas (EAs), and Regional Economic Areas (REAGs)." (Footnotes omitted from all quotations.)

It continues that "With regard to auctions-related issues, we find that our existing competitive bidding rules do not require modification for purposes of an auction of commercial 700 MHz Band licenses. To minimize uncertainty for licensees in this band, we eliminate the rules that permit comparative hearings for license renewal and clarify the requirements and procedures of the renewal process for 700 MHz Band licensees. In addition, we shift the termination date for initial license terms from January 15, 2015, to February 17, 2019, thus giving licensees an initial term not to exceed ten years after the end of the DTV transition."

The FCC's summary further states, "With regard to radiated power limits, we generally adopt a power spectral density (PSD) model, with certain limitations, to provide greater operational flexibility to licensees operating at wider bandwidths, and we provide for higher radiated power levels for these 700 MHz Band licensees operating in rural areas. We continue to allow a 50 kW ERP level for base station operations for already auctioned licenses and for unpaired spectrum in the “Lower 700 MHz Band” (TV Channels 52-59) but conclude that we should modify such power limits for paired spectrum in that Band to match the limits adopted for the “Upper 700 MHz Band” (TV Channels 60-69) in order to better enable mobile service on that paired spectrum. In addition, in order to accommodate emerging technologies, we permit these 700 MHz licensees to meet radiated power limits on an average, rather than peak, basis."

This item states that in the 700 MHz Commercial Services proceeding, "we also modify our 911/E911 rules to remove the service- and band-specific limitations on the applicability of those requirements. As amended, these rules will apply to all commercial mobile radio services (CMRS), no matter what spectrum is employed, to the extent that a service meets the scope requirements in our current rules. Similarly, we find generally that all digital CMRS providers, including providers in the 700 MHz, Advanced Wireless Services (AWS), and the Broadband Radio Service/Educational Broadband Service (BRS/EBS) bands, along with manufacturers of handsets capable of providing such services, should be subject to our hearing aid compatibility requirements to the extent that a service satisfies the scope provision in our current rules, and we amend our rules to incorporate this finding."

This item states that in the 700 MHz Guard Bands proceeding, "we replace the current “band manager” leasing regime with the spectrum leasing policies and rules adopted in the Secondary Markets proceeding to provide Guard Band licensees and spectrum users additional flexibility to enter into spectrum leasing agreements. We also eliminate restrictions that prevented Guard Band licensees from using their spectrum as a wireless service provider and restricted their ability to lease to affiliates."

This item further states that "We propose not to alter the spectrum blocks as currently aligned in the Lower 700 MHz Band, and to license the A Block on an EA basis, the B Block on a CMA basis, and the E Block on an REAG basis. As regards the commercial spectrum in the Upper 700 MHz Band, we seek comment on several band plans, and on the appropriate sizes of the license blocks and geographic service areas for these licenses.. We also propose new performance requirements for the unauctioned commercial licenses in the 700 MHz Band based on the use of specific geographic coverage benchmarks."

It also states that "We tentatively conclude not to adopt certain proposals in connection with the 700 MHz Guard Bands spectrum, advanced by parties seeking a restructuring of the existing band plan for the Upper 700 MHz Band that would include a reallocation of the Guard Band spectrum, including the “Broadband Optimization Plan”".

With respect to public safety spectrum, this item states that "we tentatively conclude to redesignate the wideband spectrum to broadband use consistent with a nationwide interoperability standard, and to prohibit wideband operations on a going forward basis. Should we end up adopting this broadband approach, we tentatively conclude to consolidate the 700 MHz Public Safety spectrum, with the narrowband spectrum being consolidated to the top of the public safety allocation, and the broadband spectrum located at the bottom of the public safety allocation. These tentative conclusions, in conjunction with our proposal in the 700 MHz Public Safety Ninth Further Notice to establish a national public safety licensee, further our efforts to establish nationwide interoperable wireless broadband for public safety."

This item also seeks public comment of the proposal of Frontline Wireless. It states that "While we have an extensive record on many of the issues raised by Frontline, such as the appropriate size of spectrum blocks, we do not have a record on some of the significant service rule changes Frontline proposes that we adopt for a commercial spectrum block that would be located just adjacent to the current 700 MHz Guard Band B Block. We seek comment on aspects and implications of the Frontline proposal to establish such a record."

Frontline stated in a release that it has requested that the FCC "license a 10 MHz block of 700 MHz commercial spectrum -- the E Block -- under the license condition that the auction winner would build a nationwide infrastructure to support the public safety broadband network. The proposal would require that the licensee provide service on a wholesale basis, operate the network under open access principles and offer roaming to requesting carriers."

Frontline CEO Haynes Griffin stated in this release that "There is still time for the FCC to do the right thing to meet the needs of public safety users for interoperability and of commercial users for innovation, choice and competition ... But unfortunately it remains unclear whether the FCC will seize this once-in-a-generation opportunity of this auction to meet these critical needs."

This item is FCC 07-72 in WT Docket No. 06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, PS Docket No. 06-229, WT Docket No. 96-86.

Comments in response to the FNPRM portion of this item will be due within 21 days after publication of notice in the Federal Register, which publication has not yet occurred. Reply comments will be due within 28 days of such publication.

Japan's Abe and Bush Discuss Trade Issues

4/27. US President George Bush and Japanese Prime Minister Shinzo Abe met at the White House and Camp David on April 26 and 27, 2007. The held a news conference on April 27. President Bush stated that "The alliance between Japan and the United States has never been stronger." See, transcript.

The two discussed, among other topics, the World Trade Organization (WTO), ongoing Doha round trade negotiations, intellectual property rights, trade between the US and Japan, and the Asia-Pacific Economic Cooperation (APEC).

President Bush stated that "Shinzo and I talked about trade and the Doha round. We have a lot of bilateral trade between our two nations. Last year it totaled more than $270 billion, and that's positive for the American people and the people of Japan. Any time you have a lot of trade, there's always complicated trade issues. One such issue, of course, I brought up to the Prime Minister is I'm absolutely convinced the Japanese people will be better off when they eat American beef. It's good beef, it's healthy beef; as a matter of fact, I'm going to feed the Prime Minister and his delegation a good hamburger today for lunch."

He continued, "But we also talked about the World Trade Organization and the Doha round, and how Japan wants to be constructive in getting this round completed, not only to enhance the prosperity in our own countries, but to help the developing world -- help lift millions of people out of poverty."

Prime Minister Abe said "With regard to the economy, I told the President that I'm determined to carry it through, structural reforms in Japan, because Japan's growth is important for the growth of the United States as well as the entire world. And I received strong words of support from the President for this direction that Japan is seeking."

The White House press office issued a release that states that "President Bush and Prime Minister Abe reiterated their strong commitment to the Doha Round and agreed to demonstrate leadership to secure a successful outcome that will stimulate growth and development by creating new trade."

This release also states that the two "endorsed enhanced bilateral efforts to promote and protect intellectual property rights, strengthen energy security, make trade flows more secure and more efficient, and increase the transparency of government regulatory processes." It also states that the two "welcomed the progress being made by U.S. and Japanese officials in sharing information on each nation’s Free Trade Agreements and Economic Partnership Agreements with third countries."

It also states that the two "confirmed APEC's role as a leading forum for shaping the future of the Asia-Pacific region and pledged their robust support for APEC’s efforts to accelerate trans-Pacific economic integration, including a possible Free Trade Area of the Asia-Pacific as a long-term prospect."

Several Bush administration officials held a news conference on the morning of April 25, 2007, regarding Prime Minister Abe's visit. See, transcript.

The Department of State announced in a release that "Secretary of State Condoleezza Rice and Secretary of Defense Robert M. Gates will hold a meeting of the U.S.-Japan Security Consultative Committee (informally known as the 2+2 Ministerial) on Tuesday May 1, 2007 at the Department of State with their Japanese counterparts, Foreign Minister Taro Aso and Defense Minister Fumio Kyuma."

House Commerce Committee Leaders Ask DOJ to Investigate Pretexters for Possible Criminal Prosecution

4/26. Rep. John Dingell (D-MI), Rep. Joe Barton (R-TX), Rep. Bart Stupak (D-MI), and Rep. Ed Whitfield (R-KY) sent a letter [3 pages in PDF] to Attorney General Alberto Gonzales requesting that the Department of Justice (DOJ) "investigate whether certain individuals committed Federal crimes related to identity theft, wire fraud, improper use of social security numbers, unauthorized access to computer information, and pretexting".

See, story titled "Federal Criminal Statutes Related to Pretexting" in TLJ Daily E-Mail Alert No. 1,463, October 6, 2006.

The four Representatives are the Chairmen and ranking Republicans on the House Commerce Committee (HCC) and its Subcommittee on Oversight and Investigations (SOI). The HCC and its SOI held extensive hearings in 2006 on pretexting and data brokers in general, and the Hewlett Packard pretexting scandal in particular.

The four wrote that "Our investigation revealed that many of these data brokers procure and sell consumers' personal and confidential information without the individuals' knowledge or consent. For example, the Committee discovered that data brokers were procuring and selling: itemized calling logs for cell phones, landlines, voice-over-Internet-protocol (VOIP) lines, and pagers; unpublished phone numbers; unlisted addresses; ``blind´´ credit reports; bank and other financial account activity; itemized credit card transaction statements; college class schedules; names and addresses underlying post office boxes or private mail boxes; passwords for email accounts; and other personal data."

The HCC also forwarded to the DOJ numerous records that it obtained during its investigation.

The HCC/SOI held a day long hearing on HP's scandal on Thursday, September 28, 2006, and another hearing on pretexting on September 29.

See, related stories in TLJ Daily E-Mail Alert No. 1,462, October 5, 2006.
 • California Charges Patricia Dunn and Others With Four Felonies
 • Cingular Sues Pretexting Firm Involved in HP Scandal
 • Verizon Wireless Files John Doe Complaint Against HP's Pretexters
 • HP Discloses Terms of Ann Baskins' Resignation Agreement
 • Persons Involved in the HP Scandal
 • Bibliography for HP Scandal

See also, related stories in TLJ Daily E-Mail Alert No. 1,463, October 6, 2006.
 • Summary of Existing Federal Laws Related to Pretexting
 • Civil and Administrative Actions by Federal Agencies Related to Pretexting
 • Federal Private Rights of Action Related to Pretexting
 • FCC License Revocation, Renewal and Transfer Proceedings

In December of 2006, the HCC/SOI Democrats sought further information regarding Mark Hurd, HP's CEO. See, story titled "House Commerce Committee Democrats Seek Further Information from HP's Mark Hurd" in TLJ Daily E-Mail Alert No. 1,508, December 19, 2006.

Rep. Frank Introduces Bill to Facilitate Licensed Internet Gambling

4/26. Rep. Barney Frank (D-MA) and others introduced HR 2046, the "Internet Gambling Regulation and Enforcement Act of 2007".

The bill would provide for the licensing of operators of internet gambling facilities by the Department of the Treasury's (DOT) Financial Crimes Enforcement Network (FinCEN).

The bill would not repeal the Unlawful Internet Gambling Enforcement Act (UIGEA), the recently enacted law that targets the financial transactions associated with internet gambling. Rather, Rep. Frank (at left) said in a release that the UIGEA needs to be "undone".

The bill would exempt from the provisions of the UIGEA financial transactions with licensed operators of internet gambling facilities.

The bill does not expressly repeal or amend the federal Wire Act, or preempt any state laws banning any types of gambling or internet gambling. However, the bill provides that "It shall be a defense against any prosecution or enforcement action under any Federal or State law against any person possessing a valid license under this subchapter that the activity is authorized under and has been carried out lawfully under the terms of this subchapter".

The bill allows states (as well as Indian tribes) to prohibit internet gambling within their borders. It also empowers sports leagues to prohibit gambling on their sporting events.

Rep. Frank's summary of HR 2046 [PDF] states that this bill "would establish a federal regulatory and enforcement framework under which Internet gambling operators could obtain licenses authorizing them to accept bets and wagers from individuals in the U.S., on the condition that they maintain effective protections against underage gambling, compulsive gambling, money laundering and fraud, and enforce prohibitions or restrictions on types of gambling prohibited by states, Indian Tribes, and sporting leagues."

See, full story.

FCC Recommends that Congress Regulate TV Content to Protect Children from Violence Programs

4/26. The Federal Communications Commission (FCC) released a report [39 pages in PDF] in its proceeding titled "In the Matter of Violent Television Programming And Its Impact On Children".

The report finds that violent video programming can be harmful to children. It states that the Congress could enact legislation to protect children from violent programs, such as through a time channeling solution, or by mandating family tiers or a la carte programming. The report asserts that such restrictions on speech would not violate the constitutional rights of video providers or viewers.

The report states that "that there is deep concern among many American parents and health professionals regarding harm from viewing violence in media. We also agree with the views of the Surgeon General that there is strong evidence that exposure to violence in the media can increase aggressive behavior in children, at least in the short term."

It concludes that "there is strong evidence that exposure to violence in the media can increase aggressive behavior in children, at least in the short term".

The report also states that "violent content is a protected form of speech under the First Amendment", but that "the government interests at stake, such as protecting children from excessively violent television programming, are similar to those which have been found to justify other content-based regulations".

It concludes that "although there are constitutional barriers to directly limiting or time channeling the distribution of violent television programming, the Supreme Court’s Pacifica decision and other decisions relating to restrictions on the broadcast of indecent content provide possible parallels for regulating violent television content."

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court of the US (SCUS) upheld the FCC's power to regulate broadcasting that is indecent, but not obscene. At issue was a radio broadcast of a monologue by gutter comic George Carlin. However, no majority of the Court formed around any constitutional analysis for sustaining the regulation under the First Amendment. Although, the Court noted the pervasive, accessible and ubiquitous nature of broadcasting. The SCUS might conclude that this accessible and ubiquitous nature is not present for cable operators and DBS providers.

The FCC's just released report concludes that "while there are legal, evidentiary, analytical, and social science obstacles that need to be overcome in defining harmful violence, Congress likely has the ability and authority to craft a sustainable definition".

It also concludes that the "Congress could implement a time channeling solution ... and/or mandate some other form of consumer choice in obtaining video programming, such as the provision by MVPDs of video channels provided on family tiers or on an a la carte basis (e.g., channel blocking and reimbursement)." (Parentheses in original.)

The report states that "Industry could on its own initiative commit itself to reducing the amount of excessively violent programming viewed by children."

It continues that "Broadcasters could adopt a family hour at the beginning of prime time, during which they decline to air violent content. Multichannel video programming providers (MVPDs) could provide consumers greater choice in how they purchase their programming so that they could avoid violent programming. Under such an approach, consumers could select the channels they want to pay for, and opt out of those that they do not. In short, an a la carte regime would enable viewers to buy their television channels individually or in smaller bundles. In this manner, consumers could avoid purchasing those channels that tend to air more violent programming. Cable and DBS operators could implement a la carte in a variety of ways. For example, it could be limited to digital cable customers who would be permitted to “opt out” of cable programming, requesting not to receive certain cable channels and having their package price reduced accordingly (“channel blocking and reimbursement”). (Parentheses in original.)

Alternatively, the report states, "customers could be allowed to “opt in” to particular cable programs".

Or, the report concludes, the Congress could mandate any of these alternatives.

Reaction. Sen. Jay Rockefeller (D-WV) commended the FCC in a release. This release states that he will "be closely reviewing the FCC's report to see if any of these recommendations should be incorporated into legislation he will introduce in the next few weeks."

He introduced S 616 (109th Congress), the "Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005", on March 14, 2005.

Sen. Rockefeller stated on April 25, 2007, that "Violent television content is reaching epidemic proportions ... We've waited a long time for this report, and the FCC is finally weighing in on one of the most critical communication issues of our time -- how can we protect our children from being exposed to excessively violent programming?"

Adam Thierer of the Progress and Freedom Foundation (PFF) stated in a release that "The FCC is opening a regulatory Pandora's Box with this report. Censoring ‘excessively violent’ television programming is an endeavor without any meaningful policy guideposts. Everyone will bring different interpretations to the task. Prolonged constitutional challenges will inevitable follow as the government and affected media industries spend years engaged in a costly legal dance until the Supreme Court likely strikes down this quixotic regulatory pursuit on First Amendment grounds."

Thierer added that "regulation isn't even necessary. Parents -- not five unelected bureaucrats at the FCC --should be responsible for deciding whether or not violent programming is allowed in their homes. Luckily, parents have been empowered with more tools than ever before to do this job. We need not call in Uncle Sam to play the role of surrogate parent for our children."

Caroline Fredrickson, Director of the American Civil Liberties Union's (ACLU) Washington Legislative Office, stated in a release that "The FCC's recommendations are political pandering. The government should not replace parents as decision makers in America's living rooms. There are some things the government does well, but deciding what is aired and when on television is not one of them. Parents already have many tools to protect their children, including blocking programs and channels, changing the channel, or turning off the television. Government should not parent the parents."

Fredrickson asked rhetorically, "How is it possible to quantify violence on television? The FCC has yet to define what 'violence' means for the purposes of regulation, and how much is too much. Monitoring what your children watch on television is a parent's responsibility -- not Uncle Sam's."

The just released report is FCC 07-50 in MB Docket No. 04-261. The statements of all five FCC Commissioners are attached to the report.

USTR Schwab Addresses International IPR Protection

4/26. Susan Schwab, head of the Office of the U.S. Trade Representative (OUSTR), wrote a short piece titled "Stronger Enforcement, Better Intellectual Property Rules Needed", which was also published in the Department of State web site, and in the April 26, 2007, issue of Investors Business Daily.

She wrote that "Strong protection and enforcement of intellectual property is critical to a knowledge-driven global economy, and securing it requires a dynamic trade policy."

Schwab (at right) continued that "One visible part of that policy is enforcing minimum standards of protection required under the basic intellectual-property rules subscribed to by every member of the World Trade Organization. Earlier this month, the United States requested WTO consultations with China in an effort to resolve concerns that China is not living up to some of those minimum standards."

She added that "a trade policy that only focused on getting trading partners to do the minimum required under WTO rules would be the very opposite of dynamic. To thwart the thieves, we must work with trading partners in developed and developing countries to clear a path toward better rules, and enforcement that is effective and in step with today's challenges."

"The U.S. free trade agreements negotiated under the congressionally granted Trade Promotion Authority are the leading edge of a dynamic U.S. trade policy for intellectual-property rights. U.S. free trade agreements are raising the standards of IP protection and enforcement among key trading partners to the highest levels and are delivering broad and deep improvements", said Schwab.

The OUSTR's annual Special 301 report on other countries' intellectual property protection and enforcement is scheduled to be released on Monday, April 30, 2007.

Jack Valenti, 1921-2007

4/26. Jack Valenti died. He was previously the President of the Motion Picture Association of America (MPAA) for 38 years. In recent years, he was a leading advocate in Washington DC for protecting copyrighted digital works from unauthorized copying.

Dan Glickman, Valenti's successor as head of the MPAA, stated in a release [PDF] that Valenti was "a passionate champion of American cinema and artistic freedom. ... He was the visionary who created the voluntary movie ratings system that has stood the test of time, both safeguarding our nation's filmmakers from censorship and providing parents with an unparalleled resource to use with their children. He ushered the movies into the digital era and condemned intellectual property theft."

Rep. Howard Berman (D-CA), the Chairman of the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property, stated in a release that "Jack Valenti was the personification of the motion picture industry in Washington. I can't think of another industry that has had a representative so well known and so highly regarded, or one so accessible in spite of  his considerable fame. A call to Jack was often returned from Geneva, or China, or Cannes, but it was always returned within hours. He was much more, though, than a lobbyist. He had an intense interest in public policy and a wisdom about him that made him an extraordinarily valuable counselor to presidents, to Congressmen and Senators and to his peers and colleagues. He was a great man with a charm and wit that won him genuine affection as well as near universal admiration."

Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), stated in a release that "Jack Valenti was a larger than life figure who brought passion, integrity and wit to every one of his endeavors. He was and will remain the gold standard for effective advocacy, whatever the cause."

Stanford law professor Lawrence Lessig, who appeared opposite Valenti at Congressional hearings and public debates, stated in his web site that "Our positions on many things could not be more different, though we shared certain, fundamental values. It took him 10 seconds to agree to endorse Creative Commons at our launch."

Gary Shapiro, head of the Consumer Electronics Association (CEA), also opposed Valenti on many intellectual property related issues. Shapiro praised Valenti in a release for his "personal warmth and wit", and for being "a passionate defender of the First Amendment".

David Rehr, head of the National Association of Broadcasters (NAB), stated in a release that "Jack's unparalleled advocacy for the motion picture industry was matched only by his innate decency as a person. Broadcasters have lost a First Amendment freedom fighter, and America has lost the most gifted public speaker of his generation."

More News

4/26. Federal Reserve Board (FRB) Governor Frederic Mishkin gave a speech at an International Monetary Fund (IMF) conference in Washington DC, on April 26, 2007, titled "Globalization and Financial Development". He advocated strong property rights, efficient legal systems, elimination of government corruption, high quality financial information, regulation of corporate management, and regulation of the banking sector. He also advocated free trade in goods, and open financial markets. However, he was otherwise silent on trade in services, and had nothing to say about protection of intellectual property.

4/26. The General Accounting Office (GAO) released a report [70 pages in PDF] titled "Intellectual Property: Better Data Analysis and Integration Could Help U.S. Customs and Border Protection Improve Border Enforcement Efforts". The report states that Customs and Border Protection (CBP) "undertakes a series of steps to enforce IP rights at the U.S. border", including "targeting suspicious shipments". The report states that CBP uses "computer-based targeting to electronically identify commercial shipments by known or suspected violators, which typically enter the country via sea, air, and truck. However, the primary computer method used for IP targeting does not work for noncommercial shipments, has limited usefulness in express consignment (e.g., Federal Express) and international mail processing environments, and has uncovered a relatively small portion of IP violations." (Parentheses in original.) The report adds that the impact of manual targeting "in uncovering IP violations cannot be determined". The report finds that "CBP lacks an integrated approach across key offices for further improving border enforcement outcomes, causing it to focus on certain efforts that have produced limited results while not taking initiative to understand and address the variations among ports’ enforcement outcomes."

4/26. The General Accounting Office (GAO) released a report [43 pages in PDF] titled "Information Technology: DHS Needs to Fully Define and Implement Policies and Procedures for Effectively Managing Investments".

4/26. The U.S. Court of Appeals (10thCir) issued its opinion [PDF] in Klesch & Company v. Liberty Media, disputes regarding agreements to purchase regional cable infrastructure in Germany from Deutsche Telekom. The Court of Appeals affirmed the District Court's judgment for Liberty Media. This case is Klesch & Company Limited v. Liberty Media Corporation, John C. Malone, and Robert R. Bennett, U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 05-1206, an appeal from the U.S. District Court for the District of Colorado, D.C. No. 01-D-1456 (CBS).

Go to News from April 21-25, 2007.