TLJ News from December 21-25, 2012

People and Appointments

12/25. With only days left for the 112th Congress to confirm pending executive branch nominations, two technology related nominees remain on the Senate's Executive Calendar, William Baer and David Medine. President Obama nominated Baer to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division. The Senate Judiciary Committee (SJC) approved his nomination on September 20, 2012. See, story titled "Senate Judiciary Committee Approves Baer Nomination" in TLJ Daily E-Mail Alert No. 2,452, September 20, 2012. President Obama nominated Medine to be Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB). The SJC approved his nomination on May 23, 2012. See, stories titled "Senate Judiciary Committee Approves PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,385, May 23, 2012, and "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

Richard Taranto

12/24. Richard Taranto is one of four Court of Appeals nominees blocked by filibuster, who might have a particular impact upon technology, if confirmed. Republican Senators remain silent in public regarding the Taranto nomination. Democratic Senators are not publicly making a case for confirmation of Taranto.

This article reviews Taranto's background and experience. It also provides information regarding why the Taranto nomination has not come up for a vote, what things might factor into Senators' voting decisions if he were to come up for a vote, and how he might affect the development of technology related areas of law if he were confirmed.

Outline of this article:

Introduction. Taranto has been nominated for the U.S. Court of Appeals (FedCir), which has jurisdiction over appeals from final decisions of the District Court in cases arising under the Patent Act. See, 28 U.S.C. § 1295. These cases also often include copyright, antitrust, and other technology related claims.

The Federal Circuit also has jurisdiction over appeals from the U.S. International Trade Commission (USITC), including in Section 337 intellectual property import cases (19 U.S.C. § 1337). It also has jurisdiction over appeals from the U.S. Court of International Trade. It also has jurisdiction over appeals from the U.S. Patent and Trademark Office's (USPTO) Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB).

Most judicial nominees who fail to win confirmation are tripped up by their prior written opinions, speeches, or articles regarding topics on which the federal courts have issued controversial opinions that are of interest to large segments of the public because of religious or ideological views. These controversial judicial issues include the regulation of abortion, government involvement with religion, racial preferences, and laws that either favor or disfavor same sex activities or associations.

However, since the Federal Circuit's jurisdiction is based upon subject matter, rather than geographic territory, it almost never decides any of these controversial cases. Hence, the views and prior statements of nominees for the Federal Circuit on these issues are of less interest to Senators, and the interest groups that lobby the administration and Senate on judicial selection.

As Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), pointed out in a speech in the Senate, "The Federal Circuit has never been controversial before." See, Congressional Record, June 18, 2012, at Page S4228.

Nominees for the Federal Circuit often shoot through the Senate confirmation process, without opposition or delay. The last two nominees to win confirmation each did so in about three months.

President Obama nominated Judge Evan Wallach on July 28, 2011. The SJC held a hearing on September 7. The SJC approved him on October 6. The full Senate approved him on November 8, by a vote of 99-0. See, Roll Call No. 199.

President Obama nominated Judge Jimmie Reyna on January 5, 2011. The SJC held a hearing on February 16. The SJC approved him on March 10. The full Senate approved him on April 4 by a vote vote of 86-0. See, Roll Call No. 47. (Actually, he was first nominated on September 29, 2010, but this was just before the 2010 elections. President Obama promptly re-nominated him at the outset of the 111th Congress.)

Nevertheless, while Taranto is a commercial appellate lawyer with vast experience in patent, telecommunications and antitrust law, he has also written amicus curiae briefs for the Supreme Court advocating gay rights.

Taranto's resume includes an elite education, prestigious clerkships (including with Robert Bork and Sandra O'Connor), and a stint in the Department of Justice's (DOJ) Office of the Solicitor General (OSG). For two decades, many large companies have entrusted him with some of their most critical and complex appellate cases. In many cases, he has produced outstanding results for his clients.

He has demonstrated vast understanding of patent, copyright, antitrust, and communications law, and an unsurpassed ability to develop and execute appellate strategies. One would be hard pressed to identify any other person nominated by either Obama or Bush for any Court of Appeals with greater expertise in a broad array of technology related areas of law.

It is a responsibility of Sen. Leahy, as the senior Democrat on the SJC, to win Senate confirmation for the nominees of a Democratic President. Sen. Leahy speaks often at SJC meetings, on the Senate floor, and in written statements about judicial nominations. He has often urged confirmation of Taranto. Sen. Leahy has touted him as "qualified", a "consensus" nominee, and having "bipartisan" support.

However, these are words that Sen. Leahy applies to any nominee of President Obama who has been stalled by Republicans. What may be notable is that while Sen. Leahy has mentioned Taranto often, it has usually only been to add him to a list of Court of Appeals nominees awaiting votes. Sen. Leahy does not elaborate on Taranto's merits. The phrase, damn with faint praise, might be applicable.

In addition, while Sen. Leahy has often stated that there is a Republican filibuster of Taranto, Republican Senators remain steadfastly silent in public regarding this nomination. No Republican Senator criticized him at his confirmation hearing. No Republican Senator has spoken critically of him in the Senate. Indeed, Sen. Leahy has asserted that Taranto "faces no Republican opposition". See, Congressional Record, December 21, 2012, at Page S8375. (Sen. Leahy probably intended to convey the thought that no Republican has publicly expressed opposition.)

Sen. Leahy has also said this: "How else to explain their adamant refusal to consider the nomination of Richard Taranto to the Federal Circuit, when the Judiciary Committee had seven of the eight Republican Senators voting for him? One, Senator Lee, cast a ``no´´ vote but said it was a protest on another matter. But every single Democrat voted for him." See, Congressional Record, December 5, 2012, at Page S7445.

Senate Judiciary Committee Consideration. President Obama nominated Taranto on November 10, 2011. The SJC held a hearing on February 29, 2012. The SJC approved Taranto on March 29.

As with all nominations, the SJC sent Taranto a form questionnaire. He provided questionnaire responses. Also, after the hearing, Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, sent him further written questions, to which he provided written answers.

Sen. Al Franken (D-MN) presided at the hearing, and asked only softball questions. Sen. Leahy did not participate. Only two other Senators did, Sen. Grassley and Sen. Mike Lee (R-UT). There was only one round of questions.

Sen. Lee spoke about methods of interpretation, and asked only easy questions. Taranto said that "I don't have a settled judicial philosophy".

Sen. Grassley expressed no opposition or criticism, but asked probing questions about two topics -- interpretation of federal Whistleblower Protection Act (WPA), and the Defense of Marriage Act (DOMA).

Sen. Grassley sited his long time interest, and role in enacting, whistleblower protection legislation. He said that "I have always pushed for strong whistleblower protection for federal employees". Sen. Grassley added that the Federal Circuit has jurisdiction here.

The Federal Circuit has jurisdiction over appeals from the U.S. Merit Systems Protection Board, which, among other things, adjudicates claims brought under the federal WPA.

Sen. Leahy added that the Federal Circuit almost always rules against whistleblowers. He said that "there has got to be something wrong". He complained in particular about the Federal Circuit's 1999 opinion in LaChance v. White.

It is unlikely, however, that Taranto's views regarding the WPA could be the basis for opposition to his confirmation, because he has never been involved in any WPA case. Taranto stated at the hearing, "I have not had any experience under that particular Act".

Defense of Marriage Act. In contrast, Taranto does have a written record that is relevant to the DOMA.

The Congress enacted the DOMA in 1996. It is Public Law No. 104-199. It defines marriage for federal purposes as a relationship between one man and one woman. States remain free allow same sex marriages, but no state is required to recognize a same sex marriage of another state.

The DOMA provides that "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife."

It also provides that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

There have been numerous legal challenges to this statute. The Supreme Court granted a petition for certiorari, in Windsor v. US, Sup. Ct. No. 12-307, on December 7, 2012. At issue is the constitutionality of the definition of marriage. See, order.

Also, despite the Constitution's mandate that the President "shall take Care that the Laws be faithfully executed" (Article II, Section 3), the Obama administration has announced that the Department of Justice (DOJ) will not defend this statute. See, February 23, 2011 letter from Attorney General Eric Holder to Rep. John Boehner (R-OH).

The Federal Circuit has not ruled on the constitutionality of the DOMA. However, there are scenarios under which it hypothetically might. For example, the Federal Circuit has jurisdiction over appeals from the U.S. Court of Appeals for Veterans Claims. A benefits claim brought by a same sex spouse of a veteran could end up before the Federal Circuit.

Sen. Grassley asked Taranto questions at the confirmation hearing, and later in writing, about the DOMA. Taranto said that it would not be appropriate for him to discuss legal issues that might come before the court. When Sen. Grassley asked if it would appropriate to apply the rationale basis test in challenges to the DOMA until the Supreme Court sets a precedent, Taranto provided a non-responsive answer. Taranto provided other non-responsive answers to other questions.

Although, judicial nominees typically refuse to discuss legal issues. Justice Scalia famously refused to express an opinion at his confirmation hearing in 1986 on whether Marbury v. Madison (1803) remains good law.

Taranto has been involved in constitutional challenges to other same sex statutes, in his capacity as amicus counsel to the American Psychiatric Association (APA).

He co-wrote an amicus curiae brief on behalf of the APA and other psychology related groups in Romer v. Evans, Sup. Ct. No. 94-1039, in support of the respondents, homosexuals and municipalities who challenged a constitutional amendment adopted by popular referendum in the state of Colorado.

It provided that neither the state nor any of its agencies or political subdivisions "shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."

The Supreme Court held this unconstitutional in 1996. See, opinion, also reported at 517 U.S. 620.

Taranto also co-wrote an amicus brief on behalf of the APA in Lawrence v. Texas, Sup. Ct. No. 02-102, in support of petitioners, two gay men who challenged the constitutionality of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. The Supreme Court held that statute unconstitutional in 2003. See, Supreme Court opinion, also reported at 539 U.S. 558.

Those who challenge the constitutionality of the DOMA now rely primarily on the Supreme Court's opinions in Romer v. Evans and Lawrence v. Texas.

Taranto's work in these two cases may serve as the basis for some opposition to his appointment to the Federal Circuit. Some Senators may believe that his prior briefs serve as a predictor of how he would rule on challenges to the constitutionality of the DOMA if he were confirmed.

However, some Senators may also hold additional related concerns. It may also be the case that some Senators believe that some of the same people in the White House Counsel's Office, and at the DOJ, who were involved in the decision not to defend the DOMA, were also involved in the decision to appoint Taranto to the Federal Circuit. That is, they associate his nomination with the affront of the refusal to enforce a Congressional statute; moreover, his appointment smacks of packing the courts with the object of overturning a statute.

MGM v. Grokster. Taranto has also been involved in numerous high profile, policy setting setting cases in technology related areas of law that might concern some Senators, and give certain organized interests reasons for lobbying Senators not to confirm him.

For example, in 2005 he represented Grokster before the Supreme Court in MGM v. Grokster. The movie and record industries therefore have reason to oppose him.

See, story titled "Supreme Court Hears Oral Argument in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,106, March 30, 2005. The Supreme Court ruled against Grokster. See also, opinion [55 pages in PDF], also reported at 545 U.S. 913, and story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Verizon v. Vonage. Taranto has also worked on patent appeals of an unusual nature that may give rise to concerns about his nomination. For example, he represented Verizon in both the U.S. District Court (EDVa) and Federal Circuit in Verizon v. Vonage, a patent infringement case that played out in the District Court and Federal Circuit in 2006 and 2007.

The relief that he won for Verizon is testament to his extraordinary legal skills. But, the underlying nature of that action might give some pause.

The patent system exists to create financial incentives to invent and innovate, and ultimately, to provide the public with the fruits of that innovation. Yet, in that case Verizon wielded patents, as an entrenched incumbent service provider, to limit competition from a new entrant with a new and innovative business model.

Verizon exposed itself to criticism that it abusively asserted patents in an anti-competitive manner. Verizon benefited financially from that victory, but it was not Verizon's finest hour.

Taranto has also represented Verizon, and its predecessor companies, in numerous other court cases and antitrust merger review proceedings. For example, he represented Verizon in Verizon v. Trinko, 540 U.S. 398 (2004).

Verizon's current status as a lightening rod for some of the critics of the communications market, and federal regulatory policy, might affect some people's opinions regarding its attorneys.

It might be noted too that President Bush nominated another attorney with sterling credentials for the DC Circuit, who had represented the other large phone company, AT&T. That nomination also languished in the Senate without a vote.

SSO Deception. Taranto also represented Rambus in some of the many proceedings relating to its participation in the JEDEC standards setting process and later assertion of patent rights. Once again, Taranto delivered superlative results for his client.

Rambus participated in a standards setting process that set DRAM industry standards. Rambus did not disclose to the standards setting organization (SSO) that it had patent claims in technologies that were standardized. It then asserted these patents. Other companies alleged fraud, deception and violation of antitrust laws.

Taranto represented Rambus before the Federal Circuit in Rambus v. Infineon, 318 F.3d 1081 (2003). See, story titled "Federal Circuit Rules in Rambus v. Infineon" in TLJ Daily E-Mail Alert No. 594, January 30, 2003.

There is another twist. While the majority ruled for Rambus, Judge Sharon Prost dissented. She wrote that "The record is replete with additional and specific instances of Rambus employees attending JEDEC meetings, taking notes of what was discussed, identifying instances where Rambus already had claims covering what was discussed, and then seeking claims to cover what they learned at the JEDEC meetings. Yet Rambus ``did not tell the people at JEDEC that what they were proposing for standardization infringed [its] patents.´´"

Prost was previously a Republican SJC staff member, and right hand assistant to Sen. Orrin Hatch (R-UT), who remains on the SJC.

Taranto also represented Rambus in Samsung v. Rambus, 523 F.3d 1374 (2008), and in Hynix Semiconductor v. Rambus.

More Notorious Cases. Taranto also wrote an amicus curiae brief for state of New Jersey, in support of the state of North Dakota, in Quill v. North Dakota.

The Supreme Court ruled in its 1992 opinion, reported at 504 U.S. 298, that state and local taxing authorities are barred under the Commerce Clause from requiring remote sellers without a substantial nexus to the taxing jurisdiction to collect sales taxes for sales to persons within the jurisdiction. While that case involved catalogue sales, the same principle applies to online sales.

Quill is one of the cornerstones of internet freedom and electronic commerce. It is also under constant assault by state tax collectors who want the Congress to enact legislation authorizing them to tax out of state online businesses. See, story titled "House Judiciary Committee Holds Hearing on Internet Sales Tax Bill" in TLJ Daily E-Mail Alert No. 2,410, July 24, 2012.

Taranto also wrote an amicus curiae brief in support of the respondent states in Seminole Tribe v. Florida, Sup. Ct. No. 94-12. See, 1996 opinion, reported at 517 U.S. 44.

This case involved the Indian Gaming Regulatory Act and the Indian Commerce clause of the Constitution. The Court held that the Congress lacks authority under Article I of the Constitution to abrogate the states' 11th Amendment immunity from suit in federal courts. However, its holding regarding the abrogation of state sovereign immunity serves as the precedent for similar cases involving intellectual property. See, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999).

In short, this series of 5-4 opinions from the Rehnquist led majority established the principle that states are free to steal other people's intellectual property.

As a result of these cases, states can hold intellectual property, and enforce their intellectual property rights in federal court. At the same same, states are in effect free to steal the intellectual property of others, without fear of a money judgments against them. Some states infringe intellectual property rights, hide behind 11th Amendment immunity, and lobby their Senators to block legislation that would remedy this situation.

The Quill opinion enjoys strong support from a broad range of technology companies, trade groups and think tanks. The state intellectual property immunity cases have been widely criticized in the tech sectors. Of course, many state governments hold contrary views. However, the salient point for this article is that Taranto was on the anti-technology side on both issues.

Sponsorship. Finally, there is the importance of having a sponsor in the Senate. The outcome of a controversial nomination can turn on whether the nominee is backed by a Senator who is making periodic speeches in the Senate on behalf of the nominee, talking to journalists, and constantly calling and cornering colleagues asking for their support.

For the recently confirmed Judge Wallach, there was Sen. Harry Reid (D-NV), the Senate Majority Leader, who delivered a personal appeal for his confirmation at his hearing on September 7, 2011.

Judge Reyna was promoted by Sen. Benjamin Cardin (D-MD) and Sen. John Cornyn (R-TX), both of whom testified at his confirmation hearing on February 16, 2011.

Taranto, in contrast, sat conspicuously alone at his confirmation hearing on February 29, 2012. He had no Senate sponsor to introduce him and urge the Committee to confirm him.

Pending Court of Appeals Nominees

12/22. There are four pending Court of Appeals nominees who have been nominated by President Obama, and approved by the Senate Judiciary Committee (SJC), but have not been confirmed by the full Senate, or withdrawn by the President. The four are:

The Senate stopped confirming Court of Appeals nominees in August, as is customary in Presidential election years. See, story titled "Confirmations and Presidential Elections" in TLJ Daily E-Mail Alert No. 2,417, August 1, 2012.

However, while President Obama won re-election, the Senate has not confirmed any pending Court of Appeals nominees since the election.

Sen. Patrick Leahy (D-VT), Chairman of the SJC, gave another of his frequent speeches on judicial nominees in the Senate on December 21. He again complained about Republicans' use of the filibuster to block Court of Appeals nominees. See, Congressional Record, December 21, 2012, at Pages S8375-7.

Senate Democrats initiated the practice of using the filibuster to block Court of Appeals nominees during the Bush administration. Metaphorically, it was the Senate Democrats who let the genie out of the bottle, to serve their will. Now, they are distraught that they cannot get the genie back into the bottle.

In his December 21 speech, Sen. Leahy attempted to distinguish Republicans' use of the filibuster from Democratics' use of the filibuster. Democrats, he said, "generally had reasons to do so". They had "substantive concerns". In contrast, Republicans' filibusters have been "meritless".

House Republicans Tell Obama Not to Impose Cyber Security Regulation by Executive Order

12/21. Rep. Marsha Blackburn (R-TN), Rep. Steve Scalise (R-LA), and 44 other House Republicans sent a letter [PDF] to President Obama to express their "grave concern regarding the Administration's non-transparent pursuit of an Executive Order related to cybersecurity."

They wrote that "Imposing a backdoor regulatory framework through Executive Order will not solve our cybersecurity challenges."

The House has already passed a cyber security bill, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or "CISPA". President Obama opposes this bill, and Sen. Harry Reid (D-NV) will not allow consideration of this bill by the Senate. The CISPA is directed at incenting cyber threat information sharing, in part by providing immunities. CISPA would not create a new government regulatory regime. See also, story titled "House Passes CISPA" and story titled "Amendment by Amendment Summary of House Consideration of CISPA" in TLJ Daily E-Mail Alert No. 2,380, April 25, 2012.

The 46 House Republicans wrote that "This framework will work better than attempts to place the government in charge of overseeing minimum standards for industries seeking to invest in new and innovative security solutions." They added that the Obama administration "should engage Congress".

They concluded that "Now is not the time to put heavy-handed regulations on industries that need incentives to improve their cyber defenses and share cyber threat information."

There are two significant cyber security bills in the Senate, S 2151 [LOC | WW], the "Secure IT Act", sponsored by Sen. John McCain (R-AZ), and S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", sponsored by retiring Sen. Joe Lieberman (D-CT). Sen. Reid has twice tried but failed to force S 3414 through the Senate without committee hearings and markups, and without Senate debate and amendment.

Title I of S 3414 would impose a new regulatory regime on private sector entities to be specified by regulators. The bill would give the federal government authority to impose cyber security standards on such companies and other entities. Any executive order imposed by President Obama would likely resemble Title I of S 3414.

See also, stories titled "Senate Again Rejects Cloture on Bill to Impose Cyber Security Regulatory Regime" in TLJ Daily E-Mail Alert No. 2,473, November 14, 2012, and "Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.

US and Russia Release Online Piracy Action Plan

12/21. The Office of the U.S. Trade Representative (OUSTR) announced and released a document [3 pages in PDF] titled "United States-Russian Federation Intellectual Property Rights Action Plan". It focuses on online piracy.

It states that "The United States and the Russian Federation remain committed to the protection and enforcement of intellectual property rights (IPR), and confirm the need to work together on improvement of the global approach to IPR protection and enforcement, including over the Internet. Strong IPR protection and enforcement are vital to promoting innovation and creativity by securing the rights of innovators and the creative community, attracting high-technology investment", and creating jobs.

Ron Kirk, the USTR, stated in a release that this plan "represents a significant step at a historic time in our bilateral economic relationship".

Ron KirkKirk (at right) stated that "Russia has made commendable progress in improving its IPR regime, and the Action Plan signals a commitment to maintain that momentum to address IPR priorities".

Under this document, both nations commit to "Take measures in order to disrupt the functioning of websites that facilitate criminal copyright infringement, and provide for takedown of infringing content" and to "Take actions against the creators and administrators of websites through which intellectual property crimes are committed".

Both nations also commit to "Devote sufficient resources within existing law enforcement entities, including specially trained personnel, and encourage creation or maintenance of specialized units with appropriate authority to focus primarily on combating piracy over the Internet, and promoting coordination between such law enforcement entities".

The document also enumerates enforcement actions to be taken by both nations. Both nations commit to "Conduct enforcement actions against counterfeiting, piracy (including software piracy and unauthorized camcording), and the circumvention of technological protection measures and encouraging the imposition of penalties and sentences that deter further violations; Conduct unannounced raids of plants, retail outlets, and warehouses to detect, seize and, where appropriate, destroy goods that violate intellectual property rights; Seize and destroy goods that violate intellectual property rights and the equipment and materials used to produce them". (Parentheses in original.)

Russia commits to "Support special legislation to combat Internet piracy, which will establish a fair framework for liability of Internet service providers in appropriate cases of infringement of intellectual property rights over the Internet."

The US commits to "Working toward the shared goal of removing the Russian Federation from the "Priority Watch List" under the Special 301 Report taking into account progress in Russia on improving IPR protection and enforcement."

US China Commission Reports on New PRC Leadership

12/21. The U.S.-China Economic and Security Review Commission (USCESRC) released a staff report [28 pages in PDF] titled "Outcomes of the Chinese Communist Party’s 18th National Congress". The author is the USCESRC's John Dotson.

The USCESRC, which is also known as the US China Commission and USCC, was created in 2000 by Public Law No. 106-398. It is a 12 member commission selected by the majority and minority leaders in the House and Senate. Its function is to research and write reports for the Congress.

This report concludes that "for the foreseeable future the prospects for the state to loosen its hand on either China's economy or its political system both appear dim".

The report states that the Chinese Communist Party's (CCP) "senior official, Hu Jintao, formally retired and handed over the offices of CCP General Secretary and Chairman of the Central Military Commission to his designated heir apparent: 59 year-old Xi Jinping, a longtime Party functionary and the ``princeling´´ son of a former PRC Vice-Premier. Alongside Li Keqiang, who is almost guaranteed to inherit the position of State Council Premier in March 2013, Xi Jinping will have a ten year (two-term) tenure in power before facing mandatory retirement at the 20th Party Congress in 2022."

This report adds that "Supporters of Jiang Zemin -- referred to here as the ``Shanghai/Princeling Faction,´´ for the fact that many share career experience in China's southeastern coastal regions, or are the children of senior-ranking CCP officials -- came out on top in personnel selections for the Politburo Standing Committee (PBSC), the executive committee that directs state policy on a week-by-week basis. Of the seven members of the new PBSC, six (Xi Jinping, Zhang Dejiang, Yu Zhengsheng, Liu Yunshan, Wang Qishan, and Zhang Gaoli) share clear patronage linkages to Jiang Zemin. The remaining member, future Premier Li Keqiang, is a close protégé of outgoing CCP General Secretary Hu Jintao." (Parentheses in original.)

The report continues that the new PBSC assignment for Wan Qishan is "striking" because he will have a policy portfolio far removed from his professional experience.

"As the PRC Vice-Premier holding the portfolio for banking and international trade policy (2008-2012), Wang Qishan has been one of the Chinese leaders most active and engaged on the international scene. This has included his leading role in the ``Strategic and Economic Dialogues´´".

Wang Qishan was in Washington DC as head of the PRC delegation at the December 17 and 18 meeting of the U.S.-China Joint Commission on Commerce and Trade. See, stories titled "JCCT Meeting Concludes" in TLJ Daily E-Mail Alert No. 2,495, December 20, 2012, and "OUSTR Reports on PRC's JCCT Commitments" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012.

The just released report continues that "Based on his extensive experience in macroeconomic policy and trade negotiations, many expected Wang to receive the slot of Executive Vice-Premier in the new PBSC; or failing that, another senior position that would keep him engaged in discussions of macroeconomic policy."

However, instead, he has been appointed director of the Central Disciplinary Inspection Commission (CDIC), "the CCP's watchdog agency for corruption. The move puzzled many observers ... The reasons for Wang Qishan's incongruous assignment to CDIC are unknown."

Zhang GaoliInstead, Zhang Gaoli (at left) will be the new PRC Executive Vice-Premier. See also, PRC government biography for Zhang Gaoli.

The report states that "The backgrounds of Wang Qishan and Zhang Gaoli suggest that they might be open to further economic reform, but neither has displayed any indications of sympathy for political reform. The only member of the new PBSC who has given any hints of support for limited political reform is Li Keqiang; however, even if Li were to be inclined to press the issue of political or major economic reform in the years ahead, he would likely find himself isolated." (Footnotes omitted.)

A Brookings Institute web page on Zhang Gaoli states that he "has been known for his pro-market economic policy orientation, especially evident in his leadership tenure in Shenzhen."

The New York Times published a story by Keith Bradsher on November 19, 2012, that describes Zhang.

Bradsher wrote that he "has emerged as the man expected, after approval by the National People's Congress in March, to handle day-to-day management of the Chinese economy. He won out over Wang Qishan, who has a much deeper background in economic and financial policy making and was seen as likely to clash with and perhaps even overshadow the incoming prime minister, Li Keqiang."

Bradsher added that Zhang "has been a defender of huge government-guided investments, an approach that very much fits the mold of ambitious party officials eager to get ahead within the existing power structure. At the same time, say experts and people who know him, he has cultivated an image as a stern bureaucratic taskmaster, a politician who can get things done by working with powerful business interests rather than challenging them."

Senate Confirms Jon Tigar and Other District Court Judges

12/21. The Senate confirmed Jon Tigar to be a Judge of the U.S. District Court (NDCal). See, Congressional Record, December 21, 2012, at Page S 8380.

President Obama nominated him in June. See, White House news office release and release. He has been a California state trial court judge since 2002 (Alameda County Superior Court). Before that, he worked for the law firm of Keker & Van Nest.

Notably, the Senate has not yet voted on the nomination of William Orrick to be a Judge for the same court, which hears many important patent and other technology related cases. See, story titled "Obama Nominates Two for USDC Northern District of California" in TLJ Daily E-Mail Alert No. 2,397, June 15, 2012.

Also, on December 21, the Senate confirmed both Matthew Brann and Malachy Mannion to be Judges of the U.S. District Court (MDPenn). See, Congressional Record, December 21, 2012, at Page S 8380. Sen. Patrick Toomey (R-PA) supported both nominations. Mannion has been a federal Magistrate Judge since 2001.

With a few days left for the Senate to act, there are now only six persons who have been nominated by President Obama for the District Court, and approved by the Senate Judiciary Committee (SJC), but not yet voted on by the full Senate. Also, four of these were only approved by the SJC on December 6. Hence there are only two pending District Court nominees who have been held up for a significant amount of time.

The six pending District Court nominees are:

Also, Mark Barnett, who has been nominated to be a Judge of the U.S. Court of International Trade, and who was approved by the SJC on December 6, has not yet been considered by the full Senate.

National Medal of Technology and Innovation Recipients Announced

12/21. The latest round of National Medals of Technology and Innovation will go to seven individuals, one team of three, and one corporation. However, only one relates to information technology. See, White House news office release.

The nine medals will be awarded to the following:

The medals will be awarded at a ceremony to be held on a yet to be announced date.

The National Medal of Technology and Innovation program was instituted by the Stevenson Wydler Technology Innovation Act of 1980. It is Public Law No. 96-180. It is now codified, along with amendments, at 15 U.S.C. § 3711.

Currently, the U.S. Patent and Trademark Office (USPTO) is tasked with administering this program. The deadline to submit nominations to the USPTO for the next round of medals is 5:00 PM on March 31, 2013. See, USPTO notice.

For more on the history of this program, see story titled "Commentary: National Medal of Technology Program" in TLJ Daily E-Mail Alert No. 1,312, February 17, 2006.

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12/21. The U.S. Patent and Trademark Office (USPTO) issued a release regarding the launch of a permanent Patent Prosecution Highway (PPH) program with the Taiwan Intellectual Property Office (TIPO). See also, story titled "USPTO and Taiwan IPO Announce Patent Prosecution Highway Program" in TLJ Daily E-Mail Alert No. 2,292, August 24, 2011.

12/21. The National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register (FR) that announces, describes, and recites changes to its Manual of Regulations and Procedures for Federal Radio Frequency Management. See, FR, Vol. 77, No. 246, December 21, 2012, at Pages 75567-75568.

12/21. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the TeleManagement Forum filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 77, No. 246, December 21, 2012, at Pages 75663-75670.

12/21. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7904 [42 pages in PDF], titled "Trusted Geolocation in the Cloud: Proof of Concept Implementation". The deadline to submit comments is January 31, 2013.

Go to News from December 16-20, 2012.