TLJ News from August 21-25, 2011

USPTO's Rea Reports on PRC Trip

8/25. Teresa Rea, Deputy Director of the U.S. Patent and Trademark Office (USPTO), who has returned from a two week trip to the People's Republic of China (PRC), wrote a short piece titled "Report From China and a Look at Our China Team".

She disclosed that the USPTO and the PRC's State Intellectual Property Office (SIPO) "are close to reaching an agreement on a Patent Prosecution Highway pilot" program.

She wrote that "My goals for this trip were to meet and speak with U.S. stakeholders in China about the challenges of patent enforcement in-country and develop recommendations; to promote and educate the Chinese inventor community on IP commercialization and technology transfer; and to promote bilateral cooperation with Chinese central-, provincial-, and municipal-level agencies responsible for IP administration and enforcement."

She also wrote that "We reinforced our commitment to sustained, consistent enforcement of IP rights, and encouraged continued support for education and capacity building."

She also discussed the USPTO's China Team. "China’s patent and trademark offices are among the largest in the world in terms of filings, and its intellectual property enforcement system is being increasingly utilized by U.S. right holders. Ensuring that the Chinese IP system works in an effective and efficient manner is essential to U.S. companies. That’s why the USPTO has an established “China team” consisting of seven attorneys in Alexandria and IP Attachés in Beijing and in Guangzhou, all with extensive knowledge and experience with China’s intellectual property system."

FCC Reinstates Video Description Rules

8/25. As directed by statute, the Federal Communications Commission (FCC) adopted a Report and Order (R&O) [48 pages in PDF] that reinstates and revises its video description rules. These rules mandate that audio be added to certain television programming to describe video content for the benefit of blind and visually impaired people.

The rules state that video description is the "insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the program's dialogue".

The rules will be reinstated on October 8, 2011. The compliance deadline is July 1, 2012.

The FCC adopted a Report & Order in 2000 that included video description rules. That R&O is FCC 00-258 in MM Docket No. 99-339. However, the FCC lacked statutory authority to impose that mandate in 2000.

In 2002, the U.S. Court of Appeals (DCCir) vacated that order in MPAA v. FCC, 309 F.3d 796. See, story titled "DC Circuit Vacates FCC's Video Description Rules" in TLJ Daily E-Mail Alert No. 547, November 12, 2002.

Although, some broadcasters and cable companies continued to provide video description without any statutory or regulatory mandate.

Late last year the 111th Congress enacted the "Twenty-First Century Communications and Video Accessibility Act of 2010", or CVAA, a huge bill, that among other things, directed the FCC to reinstate and revise its video description rules.

See, S 3304 [LOC | WW], previously titled the "Equal Access to 21st Century Communications Act", which contains the substantive language, and S 3828 [LOC | WW], the "Twenty-First Century Communications and Video Accessibility Act of 2010", which President Obama signed into law on October 8, 2010. It is now Public Law No. 111-260.

Section 202 of Title II of S 3304 provides that the FCC "shall, after a rulemaking, reinstate its video description regulations contained" in its 2000 R&O. Section 202 also provides that "Such regulations shall be modified" as specified in the statute.

The FCC adopted a Notice of Proposed Rulemaking (NPRM) [158 pages in PDF] on March 2, 2011. It released the text on March 3, 2011. It is FCC 11-36 in MB Docket No. 11-43.

The just adopted rules provide that "Commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC), and that are licensed to a community located in the top 25 DMAs, as determined by The Nielsen Company as of January 1, 2011, must provide 50 hours of video description per calendar quarter, either during prime time or on children's programming, on each programming stream on which they carry one of the top four commercial television broadcast networks." (Parentheses in original.)

Also, "Beginning July 1, 2015, commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC), and that are licensed to a community located in the top 60 DMAs, as determined by The Nielsen Company as of January 1, 2015, must provide 50 hours of video description per calendar quarter, either during prime time or on children's programming, on each programming stream on which they carry one of the top four commercial television broadcast networks." (Parentheses in original.)

And, "Multichannel video programming distributor (MVPD) systems that serve 50,000 or more subscribers must provide 50 hours of video description per calendar quarter during prime time or children's programming, on each channel on which they carry one of the top five national nonbroadcast networks, as defined by an average of the national audience share during prime time of nonbroadcast networks that reach 50 percent or more of MVPD households and have at least 50 hours per quarter of prime time programming that is not live or near-live or otherwise exempt under these rules." (Parentheses in original.)

The rules also contain a pass through requirement. The rules also exempt "live or near live" programming. Also, the rules do not reach "consumer-generated media".

The National Association of Broadcasters' (NAB) Zamir Ahmed stated in a release that the "NAB applauds the leadership of Chairman Genachowski in implementing the Twenty-First Century Communications and Video Accessibility Act of 2010. We appreciate the efforts of the Chairman, his fellow Commissioners and the FCC staff to craft rules that work for all the interested parties. Broadcasters are committed to meeting the programming needs of all members of their local communities. We look forward to working with the agency on a practical approach that ensures this service to the visually impaired community is realized on a timely and reasonable basis."

The National Cable and Telecommunications Association (NCTA) stated in a release that "We commend the Commission's balanced approach in implementing the video description requirements of the Twenty-First Century Communications and Video Accessibility Act of 2010. The Order adopted by the Commission today provides the cable industry the flexibility to implement the rules in a responsible way that will serve the interests of those who are visually impaired."

The FCC adopted this R&O on August 24, 2011, and released the text on August 25, 2011. It is FCC 11-126 in MB Docket No. 11-43.

People and Appointments

8/25. The American Association of Law Libraries, ACLU, Constitution Project, Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), and other groups sent a letter to President Obama urging him to make appointments to the Privacy and Civil Liberties Oversight Board (PCLOB). They wrote that "without nominated and confirmed members to serve on this board, the PCLOB does not currently exist". President Obama nominated two person -- James Dempsey and Elisebeth Cook -- in December of 2010. However, the Senate has not yet confirmed them. Moreover, the PCLOB is a five member body. See also, story titled "Obama to Nominate Dempsey and Cook to Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 2,181, December 17, 2010.

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8/25. The Obama administration launched a web site to publicize claims by the Obama administration that it is cutting waste and saving money. The URL is Jeffrey Zients, Deputy Director of the Executive Office of the President's (EOP) Office of Management and Budget (OMB) stated in a release that this web site "provides a window into the Obama Administration's approach to improving Federal Government performance and ensuring accountability of senior officials for achieving results".

8/25. The Technology Policy Institute (TPI) hosted a conference in Aspen, Colorado, on August 21-23, 2011. The TPI has published video of the keynote addresses and panel discussions in its web site.

Steve Jobs Resigns

8/24. Steve Jobs, CEO of Apple, resigned from this position. Tim Cook, who was previously Chief Operating Officer, was named CEO. See, Apple release.

Jobs wrote a letter to the Apple Board of Directors. "I have always said if there ever came a day when I could no longer meet my duties and expectations as Apple's CEO, I would be the first to let you know. Unfortunately, that day has come."

He continued, "I hereby resign as CEO of Apple. I would like to serve, if the Board sees fit, as Chairman of the Board, director and Apple employee." He did not describe his health in this letter.

Jobs added that "Apple's brightest and most innovative days are ahead of it".

Google to Pay $500 Million for Allowing Its AdWords Program to be Used to Promote Illegal Online Drug Sales

8/24. The Department of Justice (DOJ) announced in a release that Google and the DOJ signed a settlement agreement regarding Google's advertising assistance to foreign online pharmacies that illegally sell drugs to U.S. consumers.

The DOJ described, but did not release, the settlement agreement. The DOJ stated that Google will pay a forfeiture of "$500 million for allowing online Canadian pharmacies to place advertisements through its AdWords program targeting consumers in the United States, resulting in the unlawful importation of controlled and non-controlled prescription drugs into the United States".

The DOJ added that "Google acknowledges that it improperly assisted Canadian online pharmacy advertisers to run advertisements that targeted the United States through AdWords, and the company accepts responsibility for this conduct."

The DOJ stated that $500 Million "represents the gross revenue received by Google as a result of Canadian pharmacies advertising through Google’s AdWords program, plus gross revenue made by   Canadian pharmacies from their sales to U.S. consumers."

By reaching this agreement, Google and its directors and officers avoided criminal prosecution and civil litigation.

The DOJ also explained that "The shipment of prescription drugs from pharmacies outside the United States to customers in the United States typically violates the Federal Food, Drug and Cosmetic Act and in the case of controlled prescription drugs , the Controlled Substances Act. Google was aware as early as 2003, that generally, it was illegal for pharmacies to ship controlled and non-controlled prescription drugs into the United States from Canada."

Also, "The importation of prescription drugs to consumers in the United States is almost always unlawful because the FDA cannot ensure the safety and effectiveness of foreign prescription drugs that are not FDA-approved because the drugs may not meet FDA’s labeling requirements; may not have been manufactured, stored and distributed under proper conditions; and may not have been dispensed in accordance with a valid prescription."

Moreover, "While Canada has its own regulatory rules for prescription drugs, Canadian pharmacies that ship prescription drugs to U.S. residents are not subject to Canadian regulatory authority, and many sell drugs obtained from countries other than Canada which lack adequate pharmacy regulations."

More News

8/24. Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) President's Export Council's (PEC) Subcommittee on Export Administration (SEA) announced that it will hold a two day public meeting in the state of Florida on September 19 and 20, 2011. The agenda for September 19 includes "Export Control Reform Field Hearing". The agenda for September 20 includes "Export Control Reform Update" and other items. This meeting will take place at the Sofitel Hotel Miami, 5800 Blue Lagoon Drive, Miami, Florida. The BIS notice makes no mention of webcasting. See, notice in the Federal Register, Vol. 76, No. 164, Wednesday, August 24, 2011, at Page 52935.

People and Appointments

8/23. Eric Hinkes was named 2011-2012 Legal Policy Fellow at the Internet Education Foundation (IEF).

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8/23. The office of Sen. John Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), commented on emergency communications and the earthquake in the eastern US on on the August 23, 2011. His office issued a brief statement that this earthquake "is yet one more wake-up call that first responders need a unified, dedicated communications system that is interoperable and will work in times of emergency- like today when cell phone coverage is over-utilized and over-whelmed. When Congress returns in September- it's critical they immediately take up consideration of Sen. Rockefeller's spectrum bill because nothing's more important than the public's safety."

8/23. The Federal Communications Commission (FCC) released Public Notice regarding the three minute test of the Emergency Alert System (EAS) scheduled for 2:00 PM on November 9, 2011. See also, the FCC's Public Notice of June 9, 2011.

8/23. The Washington Post published an editorial titled "Bill would help combat copyright offenders on the Internet". It pertains to S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", or PROTECT IP Act. "Fake goods -- from sneakers to pharmaceuticals -- are produced half a world away but can be marketed to U.S. consumers through foreign Web sites. Some sites stream pirated U.S.-produced or -owned movies and television shows. Such theft costs the copyright- or trademark-holders billions of dollars each year", the Washington Post states. "There may still be room to tweak these provisions to ensure that they are not more sweeping than necessary. But there is a need for a legal tool that stops those who persistently leech off of the innovations of others."

USPTO and Taiwan IPO Announce Patent Prosecution Highway Program

8/22. The U.S. Patent and Trademark Office (USPTO) and the Taiwan Intellectual Property Office (TIPO) announced that they have agreed to establish a Patent Prosecution Highway (PPH) pilot program, to begin on September 1, 2011, and to continue for one year.

The USPTO wrote in a release that this "will permit each office to benefit from work previously done by the other office, which reduces the examination workload and improves patent quality." David Kappos, head of the USPTO, stated in this release that the TIPO "represents a rich source of high quality work product".

The TIPO stated in a release that "Applicants for invention patents that are first filed with USPTO and later filed with TIPO claiming priority to the USPTO application may submit a request for accelerated examination with TIPO, provided the examination result from USPTO contains at least one claim determined to be patentable. Correspondingly, applicants for invention patents that are first filed in TIPO and later filed in USPTO may also submit a request for accelerated examination with the USPTO, provided the examination result from TIPO contains at least one claim determined to be patentable."

The TIPO continued that "PPH is a framework for allowing, on request by the applicant, accelerated examination in an OSF (Office of Second Filing) by utilizing the search and examination results of the OFF (Office of First Filing) for the same invention. These cooperative measures help to avoid duplication of work, so as to shrink patent application backlogs and enhance examination quality. However, the program does not bind either office to approve applications that were initially approved by the partner office." (Parentheses in original.)

FCC Repeals Fairness Doctrine, Broadcast Flag, and Other Rules

8/22. The Federal Communications Commission (FCC) announced in a release the "elimination of ... Fairness Doctrine regulations".

Under these rules the FCC compelled broadcasters to carry certain speech. It required them to provide coverage of controversial issues, and to carry opposing viewpoints on these issues. The FCC determined in 1987 that these rules are unconstitutional, that they do not serve the public interest, and that the FCC will no longer enforce them. However, it did not repeal all of its rules.

The U.S.Court of Appeals (DCCir) upheld that 1987 Memorandum Opinion and Order in Syracuse Peace Council v. FCC, 867 F.2d 654.

The Supreme Court had previously upheld the Constitutionality of the FCC's fairness doctrine rules in 1969 in Red Lion v. FCC, 395 U.S. 367.

Red Lion Broadcasting Company, which operated a radio station, broadcast a show titled "Christian Crusade", starring the Reverend Billy James Hargis, a once famous crusader against "godless communism". In one program, the Reverend Hargis referenced a book by one Fred Cook. Cook took exception, and demanded that Red Lion broadcast his viewpoints too. Red Lion refused. The FCC then ordered Red Lion to put Cook on the air. Red Lion went to court, but lost. Ultimately, the Supreme Court affirmed the FCC's power to compel broadcasters to carry speech.

The Supreme Court based its ruling in Red Lion on the never coherent rationale of spectrum scarcity. In the current media environment, with cable and satellite TV, satellite radio, talk radio, news web sites, social media, and other platforms, it is questionable whether the courts would uphold the fairness doctrine.

Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR) stated in a release that "The Fairness Doctrine is a relic of an earlier era when government officials thought they knew best what news and information the American people wanted and needed". They added that "The rules are outdated and needlessly endanger our sacred freedoms of speech and the press. The FCC has finally done what it should have done 20 years ago: It has scrapped the Fairness Doctrine once and for all."

FCC Chairman Julius Genachowski stated that "The Fairness Doctrine holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago."

The FCC also announced the repeal of its broadcast flag rules. The FCC never had statutory authority to promulgate these rules, with which it sought to regulate consumer electronic devices. On May 6, 2005, the U.S.Court of Appeals (DCCir) issued its opinion [34 pages in PDF] in American Library Association v. FCC, overturning these rules. See, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005.

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8/22. Jihan S. Cover, an employee of the Department of Health and Human Services (DHHS), pled guilty in U.S. District Court (WDNC) to theft of government property, in connection with her use of government purchase cards for unauthorized personal transactions, including $16,000 to for toys and other purchases, and more than $47,000 in payments to personal accounts that she created on PayPal. See, DOJ release.

VP Biden Addresses Trade, Investment and IPR in Speech in Chengdu PRC

8/21. Vice President Joe Biden gave a speech at the Sichuan University in Chengdu, People's Republic of China (PRC). He said that the US and PRC share the same interests in mutual prosperity, trade, and cooperation. He also addressed reform of export controls in the US, protection of intellectual property rights (IPR) in the PRC, and human rights and freedom.

"China and the United States face many of the same threats and share many of the same objectives and responsibilities", said Biden.

"We often hear about Chinese exports to the United States, but last year American companies in America exported $110 billion worth of goods and services to China, supporting hundreds of thousands of jobs in America." He said that "it's in our mutual interest in each of our countries to promote that exchange."

"A more prosperous China will mean more demand for American-made goods and services and more jobs back home in the United States of America. So our desire for your prosperity is not borne out of some nobility. It is in our self-interest that China continue to prosper." He continued that "as the world’s two largest economies with ever growing ties of investment and commerce, what you do matters to us and matters to the American people. And what we do matters to you and to the people of China.  To state it bluntly, we have a stake in one another’s success.

He also discussed several technology related policy areas, including reforming the US visa system, modernizing the US export control regime, PRC restriction on foreign investment in the PRC, and PRC protection of intellectual property rights (IPR).

He said that the US "should undertake to make it easier for Chinese business people to obtain visas to travel to the United States. It takes much too long for that to happen."

He also said that the US is "in the midst of a total reform of our export control system. Already, we have made thousands of new items available for export to China for exclusive civilian use that were not available before, some of which require a license, while others don't. And tens of thousands of more items will become available very soon. That's a significant change in our export policy and a rejection of those voices in America that say we should not export that kind of technology to -- for civilian use in China. We disagree, and we're changing."

He also addressed foreign investment in the PRC. He said that "we are troubled when American investors are prohibited from having wholly owned, fully owned subsidiaries of their own company in many sectors in China and excluded from sectors, entirely excluded from competing in other sectors; restrictions that no other major economy in the world imposes on us or anyone else so broadly."

He also advocated greater protection of IPR. He said that "we have pushed Chinese officials to protect intellectual property rights. We have welcomed the Chinese State Council’s recent campaign to enforce intellectual property rights, a commitment that President Hu made when he visited and he’s keeping. But the effort must be strengthened and extended."

Biden said, citing the U.S. International Trade Commission (USITC), that "American companies lose $48 billion a year and tens of thousands of jobs because of pirated goods and services. These protections -- intellectual property protections not only benefit the United States and United States workers, United States companies, but I would argue Chinese companies, as well, as they increasingly seek to safeguard their own creations."

He argued that "It's very much in your interest that intellectual property be protected because some of you are the future artists, the future entertainers, the future innovators who will want to be able to have a market for what you do.  But if it can be acquired cheaply and pirated, why would anybody pay you for the same service?"

Go to News from August 16-20, 2011.