TLJ News from August 16-20, 2008

9th Circuit Holds eBay Sale Does Not Create Personal Jurisdiction Over Out of State Seller

8/20. The U.S. Court of Appeals (9thCir) issued its opinion [20 pages in PDF] in Boschetto v. Hansing, holding that selling an item on the eBay auction site does not confer personal jurisdiction over an out of state seller in the state of the purchaser. See, full story.

News Publishers Move to Unseal Records in AMD v. Intel

8/20. The News York Times, Dow Jones, Washington Post, Computer and Communications Industry Association (CCIA), and others filed a motion to intervene with the U.S. District Court (DDel) in AMD v. Intel, and antitrust case, for the purpose of requesting the unsealing of certain pleadings and court records.

The motion requests "access to non-confidential public records which have been sealed unnecessarily and unjustly withheld from the public". The motion requests that the court make available to the public the parties' preliminary case statements, and transcripts of teleconferences and hearings, subject to redactions.

The motion argues that "sealing has been overly-liberal".

David Finger of the law firm of Finger & Slanina filed the motion. He stated in a release that "The public has a well-established right to observe what is going on in our courts, whether it is a criminal trial or a business dispute. Each in its own way has an important impact on society, and public access promotes confidence that justice is being done fairly".

The motion also requests that "the Court reassign this action to another judge for the limited purpose of deciding this motion".

It argues that "the fact of a lingering judicial vacancy has placed a tremendous burden on the Court. Consequently, the Third Circuit has recently authorized the use of visiting judges from neighboring judicial districts to help relieve the stress. Assigning this case to one of the visiting judges, for the limited purpose of deciding the motion to intervene and unseal would promote prompt resolution of this collateral issue, while allowing this Court to retain control of the underlying controversy."

This case has been assigned to Judge Joseph Farnan, one of three Judges of the District of Delaware. However, four judgeships are authorized. See, list of authorized District Court judgeships.

The Administrative Office of U.S. Courts maintains a list titled "Judicial Emergencies" caused by unfilled vacancies. The District of Delaware is not on this list.

Kent Jordan was confirmed by the Senate to be Judge of the District of Delaware in 2002. However, President Bush later nominated him for the U.S. Court of Appeals  (3rdCir). The Senate confirmed him on December 8, 2006. President Bush did not nominate someone for the District Court vacancy that this created until February 26, 2008, when he nominated Colm Connolly. The Senate has taken no action on this nomination.

Background. AMD filed its complaint [48 pages in PDF] on June 27, 2005. It alleges violation of Section 2 of the Sherman Antitrust Act, Sections 4 and 16 of the Clayton Act, and the California Business and Professions Code.

It alleges that Intel forced major customers to accept exclusive deals, withheld rebates and marketing subsidies as a means of punishing customers who buy more than prescribed quantities of processors from AMD, threatened retaliation against customers doing business with AMD, establishing quotas keeping retailers from selling the computers they want, and forced PC makers to boycott AMD product launches.

See also, story titled "AMD Files Antitrust Complaint Against Intel" in TLJ Daily E-Mail Alert No. 1,165, June 30, 2005. And see, AMD's web page with hyperlinks to pleadings.

This case is Advanced Micro Devices, Inc. and AMD International Sales & Services, Ltd. v. Intel Corporation and Intel Kabushiki Kaisha, consolidated with Phil Paul v. Intel Corporation, U.S. District Court for the District of Delaware, D.C. Nos. C.A. No. 05-441-JJF, C.A. No. 05-485-JJF, and MDL No. 1717-JJF, Judge Joseph Farnan presiding.

People and Appointments

8/20. Rep. Stephanie Jones (D-OH) died. She was a member of the House Ways and Means Committee. See also, statement by President Bush, and statement by Rep. Steny Hoyer (D-MD), the House Majority Leader.

8/20. Nancy Judy, the Federal Trade Commission's (FTC) Director of the Office of Public Affairs, will leave the FTC. Claudia Farrell, who is currently a Senior Public Affairs Specialist, has been named Acting Director. Peter Kaplan, who is currently a reporter with Reuters, has been named Deputy Director. See, FTC release.

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8/20. The Federal Communications Commission (FCC) released the text [67 pages in PDF] of its Memorandum Opinion and Order (MOO) asserting authority to regulate the network management practices of broadband service provides. This MOO was issued in connection with a complaint submitted by the Public Knowledge and the Free Press regarding Comcast's management of certain peer to peer traffic. This item is FCC 08-183 in Docket No. 07-52. The FCC adopted, but did not release, this MOO on August 1, 2008. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

8/20. The Federal Trade Commission (FTC) announced in a release that it will host an event titled "Transatlantic RFID Workshop on Consumer Privacy and Data Security" on September 23, 2008, at its conference center at 601 New Jersey Ave., NW. The FTC also announced that the deadline to submit comments is October 23, 2008. In addition, the Transatlantic Business Dialogue (TABD) and others announced that on the previous day, September 22, they will host an event titled "Transatlantic Symposium on the Societal Benefits of RFID" at the CSIS at 1800 K St., NW. See, TABD notice and agenda [PDF].

8/20. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech [PDF] in Washington DC regarding transitioning to digital television.

Federal Circuit Affirms in Cygnus Telecommunications Patent Case

8/19. The U.S. Court of Appeals (FedCir) issued its opinion [32 pages in PDF] in In Re Cygnus Telecommunications Technology Patent Litigation, a patent infringement case involving computerized telephone callback systems. The Court of Appeals affirmed the District Court in full.

Cygnus is the assignee of U.S. Patent No. 5,883,964 titled "Interactive telephone system for optimizing service economy" and U.S. Patent No. 6,035,027 with the same title.

Cygnus filed complaints in various U.S. District Courts against numerous companies, including AT&T, alleging patent infringement. Cygnus also pled trade secret misappropriation against AT&T. These actions were consolidated in one multidistrict proceeding in the U.S. District Court (NDCal).

The District Court granted one judgment in favor of Telesys Communications and other defendants on the basis that the patents in suit are invalid under the on sale bar, which is codified at 35 U.S.C. § 102(b). The District Court also granted judgment in favor of AT&T, based on invalidity under the on sale bar, and noninfringement. It also dismissed the trade secret misappropriation claim.

The Court of Appeals affirmed the District Court on all issues on appeal.

This case is In Re Cygnus Telecommunications Technology Patent Litigation, U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2007-1328, 2007-1329, 2007-1330, 2007-1331, 2007-1332, 2007-1333, 2007-1354, 2007-1361, and 2008-1023, appeals from the U.S. District Court for the Northern District of California, Judge Ronald Whyte presiding.

Judge Bryson wrote the opinion of the Court of Appeals, in which Judges Pauline Newman and Donald Pogue joined. Pogue is a Judge of the U.S. Court of International Trade, who sat by designation.

Bush to Nominate Dempsey for Privacy and Civil Liberties Oversight Board

8/19. President Bush announced his intent to nominate James Dempsey to be a Member of the Privacy and Civil Liberties Oversight Board (PCLOB) for a five year term expiring on January 19, 2013. See, White House news office release.

Dempsey is VP for Public Policy at the Center for Democracy and Technology (CDT). He has lived in San Francisco since 2005. Before that he lived in Washington DC, where the CDT is based. He was previously Executive Director of the CDT.

The CDT added in a release that the position is part time, and that Dempsey will continue to work for the CDT.

See also, CDT's biography of James Dempsey with hyperlinks to select articles and written testimony for Congressional committees.

The original PCLOB was created by Section 1061(b) of the Intelligence Reform and Terrorism Prevention Act of 2004. This statute made the PCLOB a part of the Executive Office of the President (EOP).

The members of the original PCLOB were Carol Dinkins, Alan Charles Raul, Ted Olson, Francis Taylor and Lanny Davis. Davis resigned in 2007.

Then, the Congress reconstituted the PCLOB in Section 801 of HR 1 [LOC | WW], the "Implementing Recommendations of the 9/11 Commission Act of 2007". President Bush signed this bill into law on August 3, 2007. It is now Public Law No. 110-53.

HR 1 makes the PCLOB "an agency" within the meaning of 5 U.S.C. § 551. HR 1 provides that the PCLOB "shall be composed of a full-time chairman and 4 additional members, who shall be appointed by the President, by and with the advice and consent of the Senate."

On February 27, 2008, President Bush nominated Daniel Sutherland, Ronald Rotunda, and Francis Taylor to be members of the PCLOB. See, story titled "Bush Nominates Members of New Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 1,724, February 27, 2008.

Those nominations are still pending before the Senate.

The primary consequence to date of the restructuring of the PCLOB has been to suspend its operations, and the oversight and reports that flowed therefrom.

Ed Black, head of the Computer & Communications Industry Association (CCIA), stated in a release that Dempsey "brings years of experience to this crucial issue at a time when the need for proper oversight of the nation's surveillance infrastructure has never been greater. We only hope that this is a positive sign and that administration officials listen to Jim's wise counsel."

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8/19. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets comments deadlines for, its Notice of Proposed Rulemaking (NPRM) regarding expanding the scope of services and products covered by the FCC's schools and libraries tax and subsidy program. The FCC adopted this item on July 25, 2008, and released the text [26 pages in PDF] on July 31, 2008. It is FCC 08-173 in CC Docket No. 02-6. The deadline to submit initial comments is September 18, 2008. The deadline to submit reply comments is October 3, 2008. See, Federal Register, August 19, 2008, Vol. 73, No. 161, at Pages 48352-48359.

8/19. The U.S. Court of Appeals (2ndCir) issued its opinion [9 pages PDF] in In Re Nortel Networks Securities Litigation, a securities case in which the Court of Appeals affirmed the District Court's January 29, 2007, post settlement judgment awarding plaintiffs' counsel attorneys fees in the amount of 3% of the class recovery. They wanted 8.5%. The opinion lists plaintiffs' counsel as the law firm of Milberg Weiss & Bershad. See, stories titled "Milberg Weiss Indicted for Paying Illegal Kickbacks to Class Action Plaintiffs" in TLJ Daily E-Mail Alert No. 1,375, May 22, 2006, "Bershad Agrees to Cooperate with Prosecutors" in TLJ Daily E-Mail Alert No. 1,607, July 9, 2007, "Lerach Retires" in TLJ Daily E-Mail Alert No. 1,631, August 30, 2007, and "Grand Jury Indicts Weiss; Lerach and Shulman Agree to Plead Guilty" in TLJ Daily E-Mail Alert No. 1,644, September 24, 2007. This case is In Re Nortel Networks Securities Litigation, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 07-0757-cv, an appeal from the U.S. District Court for the Southern District of New York. The Court of Appeals issued a per curiam opinion of Judges Sotomayor, Wesley and Clifford Wallace. Wallace is a Judge of the U.S. Court of Appeals (9thCir), who sat by designation.

8/19. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, attaches, and sets the effective date (August 8, 2008) for, its Memorandum Opinion to the Copyright Royalty Board regarding the division of authority between the Judges and the Register of Copyrights under the 17 U.S.C. § 115 statutory license.

8/19. Kathleen Gain pled guilty in U.S. District Court (WDWash) to acquiring a controlled substance, hydrocodone, by misrepresentation, deception, and subterfuge, for internet based pharmacies. The U.S. Attorneys Office for the Western District of Washington stated in a release that Gain "worked for multiple internet pharmacy prescription drug web sites". It added that "These web sites were acting in violation of law. The basic method of operation was that an individual would order prescription drugs on the web site, the web site would employ physicians to authorize the prescriptions, and the drugs would be delivered to the purchaser’s residence or the purchaser would pick up the drugs at a pharmacy."

US, Japan and Taiwan Request WTO Panel on EU Duties on Tech Products

8/18. The Office of the U.S. Trade Representative (OUSTR) filed with the World Trade Organization (WTO) a request for the establishment of a dispute settlement panel regarding the European Union's (EU) failure to accord duty free treatment to certain products covered by the WTO Information Technology Agreement (ITA) [18 pages in PDF].

Susan Schwab, the USTR, stated in a release that "We regret that formal consultations have not been successful in resolving our concerns over the duties that the EU is imposing on several high-tech products ... The EU committed to bind and eliminate duties on ITA products in its WTO tariff schedules.  We believe that these duties are inconsistent with the EU’s commitments on these products, and that they discourage technological innovation in the IT sector."

The OUSTR filed a request for consultations with the WTO on May 28, 2008. See, story titled "US and Japan File Complaints with WTO Regarding EU Duties on Tech Products" in TLJ Daily E-Mail Alert No. 1,776, June 4, 2008.

This proceeding pertains to EU duties on cable boxes that can access the internet, flat panel computer monitors, and certain computer printers that can also scan, fax and/or copy.

The OUSTR release adds that "Japan and Chinese Taipei also requested consultations with the EU on May 28 and June 12, respectively, and have joined the United States in requesting the establishment of a dispute settlement panel."

Robert Mulligan of the AeA, a U.S. based trade group, stated that the "AeA believes that the EU approach to the ITA and these products would undermine the benefits of the ITA and stifle innovation." He added that "The ITA was intended to encourage technological development and the action by the United States, Japan, and Chinese Taipei will reinforce the agreement by challenging the EU approach."

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8/18. The National Telecommunications and Information Administration's (NTIA) announced in a release that "nearly 6.4 million ``over-the-air´´ TV households, those that rely on an antenna for broadcast TV, have requested about 12 million coupons from the TV Converter Box Coupon Program."

Go to News from August 11-15, 2008.