TLJ News from March 26-31, 2014

People and Appointments

3/31. The Senate confirmed Kelly Welsh to be General Counsel of the Department of Commerce.

3/31. The Senate confirmed John Owens to be a Judge of the U.S. Court of Appeals (9thCir) by a vote of 56-43. See, Roll Call No. 91. All of the no votes were cast by Republicans. Sen. Saxbe Chambliss (R-GA), Sen. Johnny Isakson (R-GA), and 54 Democrats voted yes.

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3/28. The Federal Communications Commission (FCC) set comment deadlines for its Further Notice of Proposed Rulemaking (NPRM) regarding location surveillance. The deadline to submit initial comments is May 12, 2014. The deadline to submit reply comments is June 11. This FNPRM is FCC 14-13 in PS Docket No. 07-114. The FCC adopted it on February 20, 2014, and released it on February 21. See, Public Notice (DA 14-42) setting deadlines, and March 28 notice in the Federal Register, Vol. 79, No. 60, March 28, 2014, at Pages 17819-17847. See also, story titled "FCC Proposes Changes to Location Surveillance Rules" in TLJ Daily E-Mail Alert No. 2,629, February 24, 2014.

People and Appointments

3/27. The Senate Judiciary Committee (SJC) approved the nomination Gregg Costa to be a Judge of the U.S. Court of Appeals (5thCir). The Senate confirmed him for the U.S. District Court (SDTex) on April 26, 2012 by a vote of 97-2. See, Roll Call No. 83 (112th Congress, Session 2).

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3/27. The  World Trade Organization (WTO) released its panel report [128 pages in PDF] in the case titled "United States -- Countervailing and Anti-Dumping Measures on Certain Products from China". The People's Republic of China (PRC) filed its complaint (request for consultations) against the US on September 17, 2012.

PK Urges Senate Judiciary Committee to Pass Patent Bill

3/26. The Public Knowledge (PK) and other interest groups sent a letter to the Senate Judiciary Committee (SJC) urging passage of patent legislation. They urge a multi-pronged approach that includes fee shifting, heightened pleading requirements, regulation of demand letter practices.

The agenda for the SJC executive business meeting on March 27 includes consideration of  S 1720 [LOC | WW], the "Patent Transparency and Improvements Act of 2013". However, it will be held over.

The other groups that signed the letter are Engine Advocacy, Electronic Frontier Foundation (EFF), and Application Developers Alliance (ADA).

They want a bill that provides for "oversight" of "deceptive demand letters", that provides for presumptive fee shifting, and that requires "a clear, informative complaint" and "fair notice" in pleadings.

They also wrote that "Small businesses and consumers who buy off-the-shelf technology products should be shielded from the complexities of patent litigation, when there is a willing manufacturer who is better equipped to handle the litigation."

The House passed a bill on December 5, 2013. See, HR 3309 [LOC | WW], the "Innovation Act". That bill does not address pre-litigation demand letter practices. Rather, it focuses on litigation procedure, including pleading requirements, limitations upon discovery, and fee shifting.

HR 3309 would amend 35 U.S.C. 285 to provide that "The court shall award, to a prevailing party, reasonable fees and other expenses incurred by that party in connection with a civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, unless the court finds that the position and conduct of the nonprevailing party or parties were reasonably justified in law and fact or that special circumstances (such as severe economic hardship to a named inventor) make an award unjust." (Parentheses in original.)

See also, stories titled "Sen. McCaskill Introduces Bill to Regulate Patent Infringement Demand Letters" in TLJ Daily E-Mail Alert No. 2,632, February 27, 2014, and "Obama Administration Condemns Patent Trolls" and "President Obama Mentions Patents in State of the Union Address" in TLJ Daily E-Mail Alert No. 2,631, February 26, 2014.

WTO Rules in Rare Earths Case

3/26. The World Trade Organization (WTO) released its panel reports [258 pages in PDF] in its case titled "China -- Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum".

The WTO panel found that the People's Republic of China's (PRC) export duties on rare earths are inconsistent with its accession protocol, and its export duties are inconsistent with the General Agreement on Tariffs and Trade 1994 (GATT 1994). The panel also faulted the PRC's restrictions on the trading rights of enterprises exporting rare earths.

The US, Japan and EU filed complaints, which are nominally requests for consultations, in March of 2012. See, stories titled "US, Japan and EU Take Rare Earths Issue to WTO" and "OUSTR Explains Rare Earths Request for Consultations" in TLJ Daily E-Mail Alert No. 2,349, March 14, 2012.

The US, Japan and EU requested that the WTO establish a dispute settlement panel (DSP) to rule on their complaints June 27, 2012. See, story titled "US, Japan and EU Request WTO DSP for REM Complaint Against PRC" in TLJ Daily E-Mail Alert No. 2,406, July 20, 2012.

Rare earth materials (REMs) have a wide range of uses. Among other things, they are used in such information and communications technology (ICT) products as fiber optic cable and smart phone screens. However, one of their key uses is in making permanent magnets, which have the properties of compactness, high strength, and very strong magnetic fields. These magnets are used in computer hard drives, cell phones, loudspeakers, headphones, magnetic resonance imaging, cordless electric tools, and other products.

The rare earth elements from which REMs are made are Scandium, Yttrium, Lanthanum, Cerium, Praseodymium, Neodymium, Promethium, Samarium, Europium, Gadolinium, Terbium, Dysprosium, Holmium, Erbium, Thulium, Ytterbium, and Lutetium. See also, periodic table. This case also involved Molybdenum and Tungsten.

Almost all of the world's supply of REMs now comes from the PRC. The PRC has attempted to leverage this to gain competitive advantages.

See, full story.

Judicial Appointments

3/26. The Senate confirmed Christopher Cooper to be a Judge of the U.S. District Court (DC) by a vote of 100-0. See, Roll Call No. 84.

3/26. The Senate confirmed Edward Smith to be a Judge of the U.S. District Court (EDPenn) by a vote of 69-31. See, Roll Call No. 87.

3/26. The Senate confirmed Gerald McHugh to be a Judge of the U.S. District Court (EDPenn) by a vote of 59-41. See, Roll Call No. 86.

3/26. The Senate confirmed Douglas Harpool to be a Judge of the U.S. District Court for the Western District of Missouri by a vote of 93-5. See, Roll Call No. 85.

People and Appointments

3/26. David Gossett was named acting Deputy General Counsel for Litigation at the Federal Communications Commission (FCC). See, FCC release.

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3/26.The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) published a notice in the Federal Register (FR) that requests comments regarding transitioning its Internet Time Service (ITS) to the private sector. This notice requests information on its potential transition of time services from a NIST only service to private sector operation of an ensemble of time servers that will provide NIST traceable time information in a number of different formats over the internet. The deadline to submit comments is 11:59 PM ET on May 27, 2014. See, FR, Vol. 79, No. 58, March 26, 2014, at Pages 16772-16774.